DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORD

S

2 NAVY ANNE

X

WASHINGTON DC 20370-510

0

AEG
Docket No. 3434-99
28 February 2001

Your allegations of error and

Dear Mr.
This is in reference to your application for correction of your
naval record pursuant to the provisions of title 10, 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 27 February 2001.
injustice were reviewed in accordance with administrative
regulations and procedures applicable to the proceedings of this
Board.
Documentary evidence considered by the Board consisted of
your application, together with all material submitted in support
thereof, your naval record and applicable statutes, regulations
The Board also considered the advisory opinions
and policies.
from Headquarters Marine Corps (HQMC) and the Deputy Assistant
Judge Advocate General (DAJAG) for Administrative Law, copies of
which are attached.
After careful and conscientious consideration of the entire
record, the Board found 
insufficient to establish the existence of probable material
error or injustice.
The Board found that you began your military service on 27
November 1979 by enlisting in the Marine Corps Reserve.
remained in that component and performed a three-month period of
active duty, until you enlisted in the Regular Marine Corps on 23
During the next 13 years, you served continuously
December 1981.
on active duty in an enlisted status and compiled an enviable
record of service, attaining the rank of staff sergeant (E-6),
and earning three Navy and Marine Corps Commendation Medals and
two Navy Achievement Medals.
On 1 February 1995 you accepted an appointment as a warrant
Secretary of the Navy Instruction (SECNAVINST)
officer, W-l.
1120.11A states that a selectee for warrant officer 
"shall be
permanently or temporarily appointed by SECNAV in the grade of
warrant officer, W-l in the Regular Marine Corps, under 10 U.S.C.
555 or 5596  
1991, 
S 555(b) authorized the "permanent appointment of regular

that,the evidence submitted was

You

. . 

.I’ When that directive was issued on 26 November

. . 

.*I

. 

. 

. . 

.‘I

"10 USC 

555."

21,August 1996.

S 5596(a) authorized certain

In September 1996, a command

'*such appointments shall be made by

Your
states that the statutory

As a result, you were relieved for cause and reassigned

warrant officers, W-l  
"temporary appointments of officers designated for limited duty
. Regular Marine Corps in grades not above captain,"
in the  
and further stated that 
warrant if in the grade of warrant officer, W-l 
*@Appointment Acceptance and Record"
authority for appointment was  
You completed the Warrant Officers Basic Course and the Personnel
Officers Course, and were then assigned to a helicopter squadron
It appears that you
located at Marine Corps Base (MCB), Hawaii.
However, you-received
performed satisfactorily for about a year.
an adverse fitness report due to indebtedness for the period 22
June to 
investigation revealed that you were derelict in the performance
of duties pertaining to the maintenance of pay and personnel
records.
to a logistics support position aboard the MCB.
On 3 February 1997 you received nonjudicial punishment (NJP) from
the Commanding General (CG),
assaulting your wife by
four-day period of unauthorized absence,
kicking and striking her, and false swearing, in violation of
Articles 86 and 134 of the Uniform Code of Military Justice.
Punishment extended to a punitive letter of reprimand and
You appealed the
forfeitures of $500 per month for two months.
forfeitures as being unduly harsh, but that appeal was denied.
On 26 March 1997 the CG reported the NJP to the Commandant of the
Marine Corps (CMC) and recommended that you be required to show
cause for retention in the Marine Corps, based on the NJP and the
results of the earlier command investigation.
On 21 July 1997 the Director of the Marine Corps Staff, acting
for CMC, concluded that the allegations in the 
March 1997 warranted administrative separation action.
Accordingly, a board of inquiry (BOI) was directed to consider
whether you should be separated by reason of misconduct and/or
substandard performance of duty.
On 22 August 1997 a BOI was
appointed consisting of three officers serving in the grade of
A recorder, legal advisor and
lieutenant colonel (LTCOL; O-5).
military defense counsel were also appointed.
It appears that after the BOI was appointed, but before it met,
your counsel informally complained that no member of the BOI was
in your competitive category.
the BOI telefaxed a response to counsel which reads, in part, as
follows:

On 1 October 1997, the recorder to

1st Marine Air Wing (MAW), for a

CGls letter of 26

2d(3) of enclosure (8) to SECNAVINST 

Paragraph 
&m'the respondent's "competitive  
apply to Marine Corps

1920.6A,
requires that at least one member of the (BOI) be
category,"  does not

(BOIs).

. 

. 

.

2

(LDOs). In

We also do not have 0-6s

BOIs.

. . 
.

. . 

. For  

. . . 

LDOs and warrant officers  

(WOs). We

. however, if the respondent's

WOs (each military
LDOs and 

WOs is a separate

0-6s, only senior to the respondent.

LDOs and 59 for 
CMOS] for 
. . 
.

When the instruction was issued (21 November 1983) the
Marine Corps had two competitive categories for officers:
unrestricted officers and limited duty officers 
1995, new competitive categories were established to better
manage promotions of  
now have 1 competitive category for all unrestricted
officers, 19 for 
occupational specialty  
competitive category)  
Paragraph 2d of enclosure (8) to SECNAVINST  
1920.6A, 
When the
establishes membership requirements for 
respondent is a Regular commissioned officer  
. there
. . 
must be at least t3 Regular officers in the grade of O-6
(colonel) as members  
WOs, the members need
not be 
Paragraph 
2d(3) then specifies that at least one member of
%nrestricted  line officer and that
the (BOI) shall be an
"one member shall be in the same competitive category as
the respondent 
competitive category does not contain officers in the
paygrade of O-6 or above, an O-6 from a closely related
designator shall be used  
. then an unrestricted line officer
closely related  
shall be used (emphasis added).
officersl' not "unrestricted line officers."
"unrestricted 
We have 
This language in paragraph
in the LDO or WO community.
2d(3) literally makes no sense in a Marine Corps context
and only has application to the Navy staff corps.
is the next sentence which states
What confuses the issue,
I(
Marine Corps for Manpower and Reserve Affairs] may waive
each of these requirements on a case by case basis when
compliance would result in undue 
misplaced in paragraph 
separate paragraph.
read as only applying to the requirements in the preceding
paragraphs 
2d(l) and 
provisions for waiver.
If we were to read paragraph 
2d(3) as applicable to the
Marine Corps--despite its plain language--the only real
is whether to
issue in the the case of  
assign an unrestricted officer to the (BOI) with the MOS
most closely related to the respondent.

For the Marine Corps, it should be
(2), which do not contain their own

(M&RA) [the Deputy Chief of Staff of the

2d(3) and really belongs in a

. . 

. if there is not a designator

"MOSS@@ not 

"designators."

The Marine Corps has

delay."

This sentence is

. . 

. 

. 

. 

. 

. DC/S 

. . . 

WOs

-

During preliminary proceedings,
The BOI met on 22 October 1997.
after he was advised of his right to challenge any member of the
However, during
BOI for cause, your counsel declined to do so.
his opening statement, he commented as follows on the composition
of the BOI:

3

I believe that (SECNAVINST 

1920.6A) indicates

.

. . 

Now,

enti%d to
And

I'm not taking anything from the (BOI) members

;hAt'an officer pending a (BOI) such as this is 
have an officer within his specialty group, his field.
. the record, that if
that's why I think, at least for 
we're going to evaluate a warrant officer, that perhaps one
of the members of the (BOI) should have been a chief
warrant officer or someone within his specific MOS field of
admin.
that we have here now, but I believe that if you step back
if someone was questioning
. yourselves,
and examine  
your proficiency and ability,
that it might be 
have one of the (BOI) members be someone who, in this case,
is an admin specialist, that could provide special insight
to the  
I'm familiar with how an admin
officer can let the shop go and these problems happen. So
I just wanted to indicate that for the (BOI) just to
preserve it.

TBOI) to say,  

pertingnt to

. 

.. 

. . 

The live

After considering all of the evidence, the

Extensive documentation was then introduced by the recorder and
your counsel pertaining to the misconduct for which NJP was
imposed and your substandard performance of duty.
testimony presented by the recorder focused primarily, although
not exclusively, on the deficiencies in your duty performance.
Toward the end of the proceedings, the recorder introduced in
evidence a law enforcement report pertaining to allegations of
adultery against you.
BOI unanimously concluded that you had committed both misconduct
and substandard performance of duty, and also unanimously
recommended discharge under other than honorable
conditions.(UOTHC).
Subsequently, the case was forwarded to Headquarters Marine Corps
(HQMC) through the chain of command.
All commanders echoed the
recommendation of the BOI for discharge UOTHC.
Upon arrival at
HQMC, a representative of 
submitted such a recommendation.
On 23 February 1998 the Deputy
Chief of Staff for Manpower and Reserve Affairs, acting for CMC,
also recommended a UOTHC discharge.
Assistant Secretary of the Navy (Manpower and Reserve Affairs),
acting for SECNAV, approved that recommendation.
31 March 1998, you were discharged UOTHC after about 16 years and
6 months of active service.
The narrative reason for separation
set forth on the Certificate of Release or Discharge from Active
Duty (DD Form 214) is "involuntary discharge (unacceptable
conduct) with board."
A few days before discharge, you submitted a request for
reenlistment in the Marine Corps to CMC, through the chain of
command, and supplied the information required by the governing
directive.
On 15 May 1998, this request was considered and
denied by the Reserve Staff Noncommissioned Officer and
Officer/Former Officer Enlistment/Reenlistment Evaluation Board
You  were so advised by letter of 2 June 1998.
at HQMC.

CMC's staff judge advocate also

On 5 March 1998 the

Accordingly, on

4

S 5596.

_-

2d(l) of SECNAVINST 

However, this contention is

As previously stated, the statutory authority for
S 555, which authorized
Although
Had you been appointed

paygrade  O-6.
2d(2) stated that for reservists, limited duty
llsenior to the respondent," unless SECNAV directed
"one member 

The Board found no merit in your contention that you were not
1920.6A since you
subject to the BOI procedures in SECNAVINST 
were a temporary warrant officer and the directive only applied
to permanent warrant officers.
without merit.
your appointment was stated as 10 U.S.C.
the appointment of permanent regular warrant officers.
this statute had been repealed by the 
t#me of your appointment,
its provisions were reenacted in  
5 571.
a temporary warrant officer as you claim, the statutory authority
would have been  
With regard to your contention that the BOI was improperly
constitutea because no member was a chief warrant officer in your
competitive category of Personnel (MOS 
170), the Board noted that
1920.6A stated that in the cases
subparagraph 
of regular officers other than limited duty officers and warrant
officers, the BOI members must be serving in 
Subparagraph 
officers and warrant officers,
officers 
otherwise.
in the same competitive category as the respondent."
then noted the next two sentences of that subparagraph,
pertaining to the authority to use an officer in a closely
related designator if there are no officers in 
the respondent's competitive category,
an unrestricted line officer if there is no such designator.
However, the Board concluded that these sentences were irrelevant
to your case since there was no requirement to use officers in
paygrade O-6 on your BOI in the first place. Accordingly, after
careful consideration, the Board disagreed with the HQMC advisory
2d(3) called for one of
opinion and concluded that subparagraph 
the BOI members to be in your competitive category.
in authority waived that requirement, the BOI was improperly
constituted.
Having found an error in the composition of the BOI, the Board
then turned to the issue of whether it was 
nature, thereby rendering the discharge proceedings null and
void.
There is case law to the effect that an improperly
constituted military board is a fatal defect which invalidates
the action of that 
Other cases, however, reject this
reasoning and state that a reviewing authority such as the

paygrade O-6 in
and the authority to use

the BOI need only be composed of

Subparagraph 

2d(3) required that  

jurisdictionaloin

. . 
The Board

. be

Since no one

board.2

' Department  of Defense  Authorization Act of 1992,
105 Stat.1492.
2 Henderson v. United States, 175 
U.S. 1016 (1967);  
v. United States, 599 
(1980); 

Ct.Cl. 690, 701 
Ricker v. United States, 184  

EVenSOn v. United States, 654 

f.2d 984 (Ct.Cl. 

F.2d 68 

(1966), cert. denied, 386
Ct.Cl. 402, 407,  (1968);  Doyle

(1979), cert. denied, 446 U.S. 982

(Ct.Cl. 1981).

Pub.L. 102-190, 

S 1112(a),

5

correction board should set aside the initial action only if the
potential for prejudice cannot reasonably be 
After considering the facts and circumstances of your case and
the applicable case law,
opinion to the effect that improper composition of a BOI is not
jurisdictional in nature.
following judicial admonition:

The Board noted with approval the

the Board agreed with the DAJAG advisory

denied.3

. . 

as signaling the adoption of a

. that can be construed, by any

There is nothing 
stretch of the imagination,
per se rule invalidating Correction Board action 
chooses not to correct a military record that follows
procedures containing defect  
determixation  that a procedural defect did not prejudice a
member, and thus does not require it 
"to correct an error
or remove an injustice" will be overturned only if such a
determination is  

. A Correction Board's

arbitrary.4

when-it

. . 

It is clear that your counsel raised this issue with

Having concluded that the improper composition of the BOI was a
procedural and not a jurisdictional defect, the Board then
considered whether you waived that defect.
Once again, the Board
was unable to concur with HQMC and concluded that no such waiver
occurred.
the recorder prior to the BOI.
The HQMC advisory opinion
correctly points out that during the BOI, counsel did not
challenge any of the BOI members for cause when advised of his
right to do so.
However, none of the individual members were
subject to challenge-- each one was qualified for membership.
Although the Board believed it would have been appropriate for
counsel to raise the issue of the 
he preserved the issue for review by raising it during his
opening statement.
The Board then proceeded to consider whether the failure to have
an officer in your competitive category on the BOI was
substantially prejudicial or constituted harmless error. An
error may be deemed harmless only if the reviewer is convinced
that the error did not influence the final decision, or had only
a very slight effect.'
After careful consideration of the facts
and circumstances, the Board concluded that the foregoing error
was harmless.
In this regard, there is no evidence that any of
the officers who sat on the BOI were prejudiced against you in
any way.
due to unsatisfactory performance of duty, and a warrant officer

Although you were processed for separation, in part,

BOI's composition at this time,

F.2d 914, 921 (D.C. Cir. 1979); Neal v. Secretary
(3rd Cir. 1981); Wolfe v. Marsh, 835 

F.2d 354,

F.2d 918, 923 (Fed.

3 Dilley v. Alexander, 603 
of the Navy, 639 
F.2d 1029 
358-59 (D.C. Cir. 1987);   Sargisson v. United States,  913 
Eir* 
' Kotteakos v. United States, 328 U.S. 750 
Environmental Protection Agency, 595  
States, 19 

Wolfe, supra, at 359.

c1.ct. 515 (1990).

(1946).
th

F.2d 207 (5

lggo)*

United States v.
Cir. 1979); Burd v. United

6

Eould not agree with HQMC.

in your competitive category might have had some insight into the
merits of these allegations not shared by the unrestricted line
officers on the BOI, you were also processed based on allegations
of misconduct that had no relation to your military duties, and
this misconduct eventually was designated as the reason for your
discharge and not the deficiencies in your performance.
The Board rejected the contention that SECNAV and not the board
at HQMC was required to act upon your request for reenlistment.
In this regard, the Board first considered the assertion in the
HQMC advisory opinion that the Board need not reach this issue
because your request was deficient,
fabled to
request a waiver of the applicable reenlistment criteria and also
However,
failed to note that you were pending discharge UOTHC.
The applicable directive,
the Board 
Marine Corps Order (MCO) 
reenlistment criteria will be considered if such action is
It does not
recommended by the individual's commanding officer.
require the individual to specifically request a waiver.
Further, that regulation goes into considerable detail concerning
the information that an applicant must submit, but there is no
requirement to disclose a pending administrative separation.
through.the chain of
Additionally, your request was submitted 
command, and at least some of the endorsers also reviewed the BOI
proceedings.
separation action from these individuals or the final decision
makers.
Proceeding to the merits of your contention, 10 U.S.C. 
S 515
authorized the reenlistment of a warrant officer discharged for
cause
SECNAV
exercised such discretion as follows in subparagraph 6d of
enclosure (4) to SECNAVINST 

"in the discretion of the Secretary concerned."

Obviously, you could not conceal he pending

1130.63(3, states that waiver of the

specifically, you 

1920.6A:

A  permanent Regular warrant officer, who is not eligible
for retirement, may apply for enlistment in the highest
(S 515) if
enlisted grade previously held pursuant to 
Honorably discharged because of (Substandard Performance of
Duty) 

. 

. 

.

S 515 simply was not authorized, and it was
deny your request.

Since you were discharged UOTHC by reason of misconduct, your
reenlistment under 
proper for HQMC to 
Finally, with regard to your contention that discharge UOTHC was
unduly harsh given your overall record of service, the Board
concluded that this characterization of service was appropriate.
Although you had outstanding performance while serving in an
enlisted status, which was recognized by the honorable discharges
you received, your service as a warrant officer was marred by a
disciplinary action for relatively serious offenses and by
substandard performance resulting in relief for cause, which
warranted the characterization of   UOTHC.

7

The names and

Accordingly, your application has been denied.
votes of the members of the panel will be furnished upon request.
It is regretted that the circumstances of your case are such that
You are entitled to have the
favorable action cannot be taken.
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 applies 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 a probable material error or injustice.

Sincerely,

W. DEAN PFEIFFER
Executive Director

Enclosures

8