DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAVY ANNEX

WASHINGTON DC 20370-510

0

TRG
Docket No:
23 February 2001

3051-99

.-

Dear

This is in reference to your application for correction of your
naval record pursuant to the provisions of title 10 of the United
States Code, section 1552.

A three-member panel of the Board for Correction of Naval
Records, sitting in executive session, considered your
application on 21 February 2001.
injustice were reviewed in accordance with administrative
regulations and procedures applicable to the proceedings of this
Board.
Documentary material considered by the Board consisted of
your application, together with all material submitted in support
thereof, your naval record and applicable statutes, regulations
and policies.
In addition, the Board considered the advisory
opinion furnished by Headquarters Marine Corps, a copy of which
is enclosed.

Your allegations of error and

After careful and conscientious consideration of the entire
record, the Board found that the evidence submitted was
insufficient to establish the existence of probable material
error or injustice.
In this connection, it is clear from the
record that you fraternized with an enlisted member and made at
least one false official statement concerning this matter.
Therefore, the Board believed that there was no abuse of
discretion in the decision to process you for separation from the
In this regard, the
Marine Corps and to direct your discharge.
Board gave careful consideration to your otherwise exemplary
record, but could not conclude that this record made your
discharge inappropriate.
Therefore, the Board substantially
concurred with the comments contained in the advisory opinion.

Accordingly, your application has been denied.
votes of the members of the panel will be furnished upon request.

The names and

It is regretted that the circumstances of your case are such that
favorable action cannot be taken.
You are entitled to have the
Board reconsider its decision upon submission of new and material
evidence or other matter not previously considered by the Board.
In this regard, it is important to keep in mind that a
presumption of regularity attaches to all official records.
Consequently, when applying for a correction of an official naval

record, the burden is on the applicant to demonstrate the
existence of probable material error or injustice.

Sincerely,

W. DEAN PFEIFFER
Executive Director

Enclosure

2

DEPARTMENT OF THE NAVY

HEADQUARTERS UNITED STATES MARINE CORPS

2 

NAVY  ANNEX

WASHINGTON, DC 20380-1775

IN REPLY  REFER TO:

1070

ii?ac, 1889

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF

NAVAL RECORDS

Subj:

BOARD FOR CORRECTION OF NAVAL RECORDS

E OF FORMER
U.S. MARINE

(BCNR) APPLICATION

We are asked to provide an opinion on Petitioner's request

1.
for reinstatement.

We note at the outset that BCNR

ly  records Petitioner's SSN as

We recommend that the requested relief be denied.

2.
analysis follows.

Our

3 .

Background

a.

On 2 Aug 1994,

Petitioner received nonjudicial

punishment (NJP) for fraternizing with an enlisted female Marine
by kissing her on two occasions,
statement denying that misconduct.
$500.00 pay per month for two months and a punitive letter of
censure.
Petitioner did not appeal.

The forfeitures were suspended for six months.

and for making a false official
He was awarded forfeiture of

b.

On 1 

Dee  1994, the Commanding General, Marine Corps

the Deputy Chief of Staff for Manpower
M&RA),

designated by the Secretary of

CG MCCDC also recommended that Petitioner not be

Base, Marine Corps Combat Development Command (CG MCCDC),
reported Petitioner's NJP to the Commandant of the Marine Corps
(CMC) .
required to show cause for retention in the U.S. Marine Corps.
On 31 Jan 1995, however,
and Reserve Affairs (DC/S 
the Navy 
(SecNav)  as the Show Cause Authority for the Marine
Corps, directed CG MCCDC to convene a Board of Inquiry (BOI) to
consider whether Petitioner should be retained on active duty in
light of his misconduct.
member BOI found by a preponderance of the evidence that
Petitioner had failed to demonstrate acceptable leadership
and had also demonstrated moral or professional
qualities,
dereliction by engaging in the misconduct for which he had
received NJP.
Petitioner be separated with an Honorable characterization of
service.

On 22 Sept 1995,

The BOI then recommended, again unanimously, that

a unanimous 

three-

Subj:

BOARD FOR CORRECTION OF NAVAL RECORDS (BCNR) APPLICATION

E OF FORMER
U.S. MARINE

C .

On 18 Mar 1996, CMC recommended to SecNav that

Petitioner be discharged consistent with the 
recommendations.
Petitioner's years of service and record of performance in
making his recommendation.
Petitioner's discharge as recommended.

On 9 Apr 1996,

CMC noted specifically that he had considered

SecNav approved

--

BOI's  findings and

4.

Analysis

a.

Through counsel,

Petitioner argues in essence that it

was inappropriately severe to discharge him on the basis of the
noted misconduct because the fraternization was consensual,
because he retracted the false statement, because he admitted
guilt during his NJP hearing,
throughout his career before the incidents.
maintains that he should not have been discharged because the
recommended against that action.
NJP authority, CG MCCDC,
Petitioner suggests that the BOI was prejudiced because the
members knew that the Board had been convened at the direction
of DC/S 
asserts that the members were therefore subject to actual
unlawful command influence.

MtRA  against the recommendation of CG MCCDC.

and because he had performed well
Petitioner also

Last,

Petitioner

b.

Petitioner's arguments are without merit.

was discharged under authority given SecNav in 10 U.S.C. 
after being afforded the opportunity to oppose that action
See, e.g., Milas v. United States, No. 
before a BOI.
1999 Fed. Cl. LEXIS 14 (Fed. Cl. Jan. 20, 
Board of Inquiry procedure provides due process).
that it was unfair to discharge him for his misconduct is simply
a request for reconsideration of a decision personally made by
SecNav.
Petitioner does not provide any evidence not already considered
by SecNav.

Reconsideration is inappropriate, however, since

1999)(noting

Petitioner

5 1166

98-331C,
 that
His argument

C .

Petitioner's argument that he should not have been

discharged because CG MCCDC had recommended against processing
him for separation is without merit.
was advisory only,
or SecNav.

and did not in any way bind DC/S 

MCCDC's  recommendation
M&RA,  CMC,

CG 

d.

without merit.

Petitioner's argument that the BOI was not impartial is
Petitioner bases this argument on an unfocused

2

Subj:

BOARD FOR CORRECTION OF NAVAL RECORDS (BCNR) APPLICATION

(R. at 18-22).

MGRA
MCCDC's  recommendation to
Viewed in its entirety, however,

Moreover,

That question was resolved to the

even if interpreted as argued by Petitioner, the
In order to

BOI's  authority to hear Petitioner's case.

unlawful command influence over a BOI, Petitioner

discussion that occurred during the BOI about why DC/S 
directed the BOI notwithstanding CG 
the contrary.
the discussion suggests only that the Senior Member of the BOI
was curious about whether that recommendation affected the
jurisdiction of the BOI.
apparent satisfaction of the BOI when Petitioner's 
conceded the 
22).
noted discussion would not raise the issue.
establish
would have to show a command relationship between the officer
purportedly exercising the influence and the BOI, an improper
influence based on that relationship, and a nexus between the
alleged influence and the unfavorable action.
at 
is not in the chain of command of any of the BOI members.
Second,
to interfere in any way with the 
case.
the supposed influence and the 
prejudice is based only on speculation, and absent indications
to the contrary, the proceedings of the BOI are entitled to a
Put another way, Petitioner's
presumption of regularity.
unsupported speculation does not provide a basis for questioning
the good faith of the BOI members.

Petitioner offers no evidence that DC/S 

Petitioner fails on all three counts.

BOI's  consideration of his
Petitioner offers no evidence of a nexus between
His claim of

BOI's  result.

*24.

Finally,

counse*

(R.  at

Milas,
First,

LEXIS 14
DC/S 

M&RA

M&RA  attempted

Conclusion.

5 .
recommend that the requested relief be denied.

Accordingly,

for the reasons noted, we

Head,
Judge Advocate Division

Military Law Branch

3