DEPARTMENT OF THE NAV
BOARD FOR CORRECTION OF NAVAL RECORD

Y

S

2 NAVY   ANNE X
WASHINGTON DC 20370-5100

CRS
Docket No:   4078-00
15 January 2002

Dear

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.

Your allegations of error and

A three-member panel of the Board for Correction of Naval
Records, sitting in executive session, considered your
application on 31 October 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.
advisory opinions furnished by Headquarters Marine Corps (HQMC)
of 30 April, 30 May and 20 August 2001, copies of which are
attached.
of 21 and 27 September 2001.

The Board also considered your two rebuttal statements

In addition, the Board considered the three

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.

The Board found that you reenlisted in the Marine Corps on 19
February 1986 after more than three years of prior active
service, during which you received nonjudicial punishment (NJP)
on 14 July 1984.

The record reflects that on 16 June 1986 you received NJP for an
unauthorized absence and insubordination toward a noncommissioned
officer.
$200, and suspended restriction and extra duty for 14 days. You
did not appeal.
vacated.

The punishment imposed consisted of a forfeiture of

On 8 July 1986   the suspended punishment was

On 9 July 1986 you were counselled and warned that further
deficiencies could result in administrative separation.
advised of recommendations for corrective action and told that

You were

assistance could be obtained from various officials.
also counselled on 19 May,
indicates that these  
one on 9 July 1986.

2 July and 4 August 1986.

counsellings  were not as extensive as the

You were
The record

On 11 July 1986 you received NJP for an unauthorized absence.
The punishment imposed consisted of a reduction in rank and
forfeiture of $204.

You did not appeal.

On 8 August 1986 you received NJP for an unauthorized absence.
The punishment imposed consisted of a forfeiture of $190, and
suspended restriction and extra duty for 14 days.
appeal.

You did not

On 25 November 1986 you received NJP for drunk and disorderly
conduct.
The punishment imposed consisted of a forfeiture of
$198 and restriction and extra duty for 14 days. All punishment
was suspended for six months.
1987 the suspension was vacated.

You did not appeal.

On 20 January

Also on 20 January 1987, you received NJP for three instances of
insubordination toward a noncommissioned officer.
imposed consisted of a reduction in rank to private first class
and a forfeiture of $360.
denied.

You appealed, but the appeal was

The punishment

The record reflects that on 30 June 1987 you received NJP for
disrespect to a superior commissioned officer, disobedience of a
lawful order,
insubordination toward a noncommissioned officer,
and assault.
The punishment imposed consisted of a reduction in
rank to private.

You did not appeal.

You then elected to present your case to an

Also on 30 June 1987, administrative separation action was
initiated by reason of misconduct due to minor disciplinary
infractions.
adminstrative discharge board (ADB).
On 30 July 1987 an ADB
recommended that you be separated with an other than honorable
discharge by reason of misconduct due to minor disciplinary
infranctions.
of your supervisors, a gunnery sergeant  
impression that he doesn't like black people."
testified about this GYSGT and stated  
racism."

During the ADB, a defense witness stated that one
"gives the
Another witness

"I've heard about his

(GYSGT;E-7), 

In its report, the ADB specifically stated that the 1984 NJP had
been considered only on the issue of retention or separation, and
not characterization.
judge advocate (SJA) noted that you had preservice misconduct of
battery and grand theft.
misconduct in his discussion of your case, or use it to justify
his recommendation that you be separated under other than
honorable conditions.

After review by the discharge authority,

In his review of your case, the staff

However, he did not refer to this

2

the recommendation for separation was approved and you were
discharged with an other than honorable discharge on 12 August
1987.

The Board first concurred with the advisory opinion of 30 April
2001 furnished by the Assistant SJA for Military Law (JAM), HQMC.
The opinion found no support for your contention that the adverse
actions in your case were motivated by racial prejudice since the
GYSGT mentioned in the ADB testimony did not impose NJP, initiate
The JAM opinion also
separation action or direct discharge.
found that in spite of the testimony at your ADB, neither the
administrative separation proceedings, the actions of your
commanding officer, or the separation authority's actions were
motivated by racial prejudice or any other improper purpose.

The opinion also found that your claim that four of the  
unlawful because you were not permitted to consult with a lawyer
was without merit, since there are service record entries showing
that you were afforded the opportunity to consult with counsel.
Further, consultation with counsel is not a prerequisite to a
valid NJP.

NJPs were

Even if you did refuse NJP,

Your claim that the NJP of 30 June 1987 never occurred because
you refused to accept it was also found by JAM to be without
merit.
the Board agreed that you
certainly would have appealed any NJP that was imposed despite
However, the record shows that you did not do
such a refusal.
so.
action occurred on 30 June 1987 since administrative separation
action was initiated on that same day due to your disciplinary
actions, and other than the NJP of that day, the most recent such
action was in January 1987,

Additionally, it seems clear that some sort of disciplinary

more than five months earlier.

The opinion also concluded that your claim of inadequate
representation at the ADB has no merit whatsoever.
claim that the ADB improperly considered the NJP of 14 July 1984
from a prior enlistment is also without merit.
prior enlistment may be considered for the purpose of determining
whether separation is appropriate, but not to determine
characterization.
This is what happened in your case.

An NJP from a

Finally, the

Concerning the advisory opinion of 30 May 2001 from the Manpower
Management Information Systems Division (MIFD), HQMC, the Board
noted the statement to the effect that the three counseling (page
11) entries of 19 May, 2 July and 4 August 1986 did not meet all
of the requirements for proper page 11 entries.
However, the
Board concluded that removal of these entries is not warranted
because the defects are basically cosmetic, and you have not
shown that the contents of those entries are in error.
removal of these entries would not invalidate your discharge or
mandate recharacterization,
fulfilled all the requirements set forth in appropriate directives.

since the 9 July 1996 counseling

Further,

3

The MIFD opinion also recommended denial of your requests to
remove the reduction entries, the page 11 entry of 9 July 1986
that mentions the 19 July 1984,
and Punishments (page 12).
recommendations.

The Board concurred with these

and the entries on the Offenses

such as your prior honorable

The Board also paid special attention to your

In its review of your application the Board carefully considered
all potentially mitigating factors,
service.
contention that blatant racism caused your disciplinary actions
In this regard, the Board especially noted the
and separation.
advisory opinion from the Equal Opportunity Branch (MPE), HQMC.
However, the Board concluded that these factors and your
contention were not sufficient to warrant recharacterization of
your discharge or restoration to active duty given the six  
during your second enlistment,
In this regard, the Board specifically concurred with the
advisory opinion from JAM and,
proceedings, disagreed with the preliminary conclusion set forth
in the MPE advisory opion.
Along these lines, the Board also
noted that your contention of racism was raised at the ADB and
apparently received appropriate consideration, but was rejected.
The Board saw no reason to overturn the judgment of the ADB on
this issue.

NJPs
which lasted less than 18 months.

after reviewing the ADB

SJA's notation of your preservice

The Board concluded that the  
misconduct in his memorandum pertaining to your ADB, was of
questionable validity.
that misconduct in his recommendation, or even discuss it his
review of your case, the Board concluded that the  
SJA's notation
had no impact on the separation authority's decision to direct an
other than honorable discharge.
Accordingly, any error in this
regard was harmless.

However, since the SJA did not rely on

The Board noted your request for modifications to the
Certification of Military Service in the form of a correct social
security number and rank.
corrections that do not require action by the Board.
Accordingly, you should present that request and supporting
evidence to the National Personnel Records Center, 9700 Page
Boulevard, St. Louis, Missouri 63132.

However, these are administrative

Concerning your request for damages you have suffered from your
discharge, the Board is not authorized by law to monetarily
compensate individuals for damages.
Further, since your
discharge was proper and appropriate, no such damages are
warranted.
promotions until retirement and the return of your reenlistment
bonus.
not entitled to any promotions.
Further, regulations require
recoupment of the unearned portion of a reenlistment bonus when
an individual is separated for misconduct.

The Board also denied relief on your requests for

Since your discharge was proper and appropriate, you are

4

The names and

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

Enclosures:
1. JAM 4 Memo of 30 Apr 01
2. MIFD Memo of 30 May 01
3. MPE Memo of 20 Aug   01

5

3280ffUSSELL  ROAD

QUANTICO, VIRGINIA 22

  134-5 

DEPARTMENT OF THE NAVY

HEADQUARTERS UNITED STATES MARINE CORPS

t 03

IN REPLY REFER TO:

1070
MPE
20 Aug 01

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD OF CORRECTION

OF NAVAL RECORDS

Subj:

OF FORMER

1. As requested a review of former
on witness testimony, it appears that discrimination may have been a factor as seen in the
portions of the administrative board results provided. Recommend that a copy of the
complete board transcripts be reviewed before a final decision is made.

application was conducted. Based

’

2. Point of contact is

‘at DSN 784-9371.

Deputy, Manpower
Equal Opportunity Branch
Manpower, Plans and Policy
Division

DEPARTMENT OF THE

 

NAVY

HEADQUARTERS UNITED STATES MARINE CORPS

3280 RUSSELL

ROAD
OUANTICO,  VIRGINIA 221346103

 

IN REPLY REFER TO:

107 0
MIFD

MEMORANDUM FOR EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF

NAVAL RECORDS

Subj:

BCNR APPLICATION IN THE CASE OF FORMER PRIVATE

Former

1.
documents concerning his request for the removal of fraudulent
entries in his Service Record Book (SRB) has been reviewed.

application and supporting

.

MC0 

(IRAM), authorizes commanders to make SRB

P1070.12D,  Marine Corps Individual Records

Paragraph 4009 sets forth guidance and provides

2.
Administration Manual  
entries.
information on appropriate entries and maintenance requirements
of the Record of Time Lost, Promotion,
118(5)
Paragraph 4014 sets forth instructions for commanders
page 5
to record entries on the Administrative Remarks (1070) NAVMC
118(11) page 11 which are considered matters forming an
essential and permanent part of a Marine's military history,
which are not recorded elsewhere in the SRB and will be useful
to future commanders.
Paragraph 4015 sets forth guidance for
recording information on the Offenses and Punishment, NAVMC
118(12) page 12.

Reduction NAVMC  

The following comments concerning the Record of Time Lost,

3.
Promotion, Reduction NAVMC  

118(5)  page 5  are provided:

a.

The time lost section is designed to record any periods

of time lost and their effect on the pay entry base date,
expiration of obligated service,

and active duty base date.

b.

The promotion and reduction section is designed for

recording a history of promotion and reduction in the order in
which they occur, to include the effective date, the grade,
date of rank,

and the authority by which effected.

C .

Unauthorized absence  

(VA) entries recorded in the time
lost section must be supported by documented evidence and match
the recorded information on the Offense and Punishments NAVMC
118(12) page 12 after entering the information in his automated
records.

Subj:

BCNR APPLICATION IN THE CASE OF FORMER PRIVATE

d.

The entries recorded on former

are in compliance with the guidance per paragraph 4009 of the
IRAM.

page 5

4.
Remarks(1070)  NAVMC 

The following comments concerning the Administrative
118(11) page 11 entries are provided:

a.

The page 11 counseling entries dated 860519, 860702,

and 860804 do not meet the elements of a proper'page 11
counseling in that they fail to list specific recommendations
for corrective action and assistance available per paragraph
4014.3ee  of the  

IRAM.

b.

Former

acknowledged these counseling

entries by his signature and indicated his desire
a statement in rebuttal for the page 11 entry dated 860519. He
did indicate his desire
"to" make a statement in rebuttal for
the page 11 entries dated 860519 and 860702, however, these
statements are not included in his application.

"not 

 

to" make

C .

Former

goes to great length in his

attempt to refute the contents of these page 11 entries, yet he
does not provide documented evidence to support his claim that
they are in error or there was an injustice committed.

d.

The page 11 counseling entry dated 860709 does meet the

recommendations for corrective action,

elements of a proper page 11 counseling in that it lists
deficiencies,
assistance can be found, and states that former
was provided the opportunity to make a rebuttal statement.
Additionally, he was afforded an opportunity to annotate whether
or not he chose to make such a statement and if made, a copy of

where

uld be filed in the service record.
acknowledged the counseling entry
and further chose "to" make a statement in

Former

It is not known if the rebuttal statement was ever

rebuttal.
filed in his SRB or OMPF.

5.
Punishment (NAVMC  

The following comments concerning the Offenses and

118(12))  page 12 entries are provided:

2

Subj:

IVATE

a.

A page 12 entry is designed for recording offenses and
and for establishing command jurisdiction at time

punishments,
of the offense.
a designated representative who will sign "by direction".

These entries may be signed by the commander or

b.

When nonjudicial punishment is imposed as authorized by

Article 15 of the Uniformed Code of Military Justice and the
Manual for Courts-Martial,
118(12) per paragraph 4015 of the  

entries will be made on the NAVMC

IRAM.

C .

The Offenses and Punishment (NAVMC  

118(12))  page 12

entries dated 860618, 860711,
860808, 861125,
do meet the elements of a proper page 12 entry.

870120, and 870630

6.

In view of the above,

it is recommended that:

a.

Disapprove former

of the reduction entries
Promotion, Reduction NAVMC  

from the Record of Time Lost,

118(5)  page 5.

request for removal

b.

Disapprove former

of the Administrative Remarks(1070) NAVMC  
dated 860709 from his service records.

request for removal
118(11) page 11 entry

C .

Approve the removal of the three page 11 counseling

entries referenced in paragraph 4a above if the Board does find
that an injustice was committed.
However, removal of these
entries would not appear to have a significant effect on the
type of separation he received.

d.

Disapprove former
___

of the Offenses and Punishments,
from his service records.

7 .

Point of contact is Mr.

NAVMC 

re&est  for removal

118(12) page 12 entries

Director
Manpower Management Information
Systems Division

3

DEPARTMENT OF THE NAVY

HEADQUARTERS UNITED STATES MARINE CORPS

2 NAVY ANNEX

WASHINGTON, DC 20380-1775

IN REPLY REFER TO

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF

NAVAL RECORDS

Subj:

BOARD FOR CORRECTION OF NAVAL RECORDS

(BCNR) APPLICATION

We are asked to provide an opinion on Petitioner's request
1.
for the removal from his service record book (SRB) and official
military personnel file (OMPF) of all entries related to the
nonjudicial punishments (NJP) he received on 14 July 1984, 16
June 1986,
19 November 1986, 9
January 1987, 30 June 1987,
11 entries from his SRB and OMPF.
restoration of all property, privileges, and rights affected by
those actions.
Petitioner requests promotion to
sergeant, consideration for additional promotions,
retirement pay.

Petitioner also requests

7 August 1986,

and the removal of all negative page

8 July 1986,

In addition,

and

We recommend that the requested relief be denied.

_.
3
analysis follows.

Our

.3 

.

Background

a.

On 14 July 1984, Petitioner received NJP for

unauthorized absence and insubordination toward a
noncommissioned officer,
the Uniform Code of Military Justice (UCMJ), respectively.
Petitioner was awarded a reduction in rank to private first
class.
Petitioner did not appeal.

The reduction in rank was suspended for 6 months.

in violation of Articles 86 and 91 of

b.

On 16 June 1986, Petitioner received NJP for

unauthorized absence and insubordination toward a
noncommissioned officer,
the UCMJ, respectively.
$200.00 pay per month for 1 month, 14 days extra duty, and 14
days restriction.
for 6 months.

in violation of Articles 86 and 91 of
Petitioner was awarded a forfeiture of

The extra duty and restriction were suspended

Petitioner did not appeal.

C .

On 8 July 1986, Petitioner received NJP for unauthorized

absence in violation of Article 86, UCMJ.
awarded reduction in rank to lance corporal and forfeiture of

Petitioner was

Subj:

BOARD FOR CORRECTION OF NAVAL RECORDS

(BCNR) APPLICATION

$204.00  pay per month for 1 month.

Petitioner did not appeal.

d.

On  7 August 1986,

Petitioner received NJP for
unauthorized absence in violation of Article 86, UCMJ.
Petitioner was awarded a forfeiture of $190.00 pay per month for
1 month,
duty and restriction were suspended for 3 months.
did not appeal.

and 14 days restriction.

14 days extra duty,

Petitioner

The extra

e.

On 19 November 1986,

Petitioner received NJP for drunk

and disorderly conduct in violation of Article 134, UCMJ.
Petitioner was awarded a forfeiture of $198.00 pay per month for
1 month,
punishment was suspended for 6 months.
appeal.

All
Petitioner did not

and 14 days restriction.

14 days extra duty,

f.

On 9 January 1987, Petitioner received NJP for

insubordination toward a noncommissioned officer in violation of
Article 91, UCMJ.
Petitioner was awarded a reduction in rank to
private first class and a forfeiture of $360.00 pay per month
for one month.
denied.

Petitioner's appeal was

Petitioner appealed.

g-

On 30 June 1987, Petitioner received NJP for disrespect

to a superior commissioned officer,
order, insubordination toward a noncommissioned officer,
assault,
UCMJ, respectively.
to private.

in violation of Articles 89, 90, 91, and 128 of the

disobedience of a lawful
and

Petitioner was awarded a reduction in rank

Petitioner did not appeal.

h.

On 6 June 1987, Petitioner received notice that

On 30 July 1987,

administrative separations proceedings against him were going to
be initiated.
separation board recommended that he be administratively
separated under Other Than Honorable Conditions due to
misconduct,
Petitioner was administratively separated with an Other Than
Honorable Conditions characterization of service by reason of
misconduct,

minor disciplinary infractions.

minor disciplinary infractions.

Petitioner's administrative

On 12 August 1987,

4.

Analysis

a.

The record does not support Petitioner's claim that his

page 11 entries,  

NJPs, and administrative separation were

2

Subj:

R) APPLICATION

motivated by racial prejudice.
Given that a presumption of
regularity attaches to official records, the burden is on the
Petitioner to provide evidence substantiating his claim.
Although the transcript of Petitioner's administrative discharge
board includes testimony from two sergeants who both stated that
a gunnery sergeant in Petitioner's command "did not like black
Marines," the gunnery sergeant in question did not impose the
NJP's, authorize the page 11 entries, or initiate the
administrative separations proceedings at issue.
Petitioner
provides no evidence that the actions of his commanding officer
or the separation authority were motivated by racial prejudice
or for any other improper purpose.

b.

Petitioner's claim that four of his NJP's were unlawful

Petitioner's SRB contains page 11

because he was denied the opportunity to consult with an
attorney is without merit.
and page 12 entries indicating that he was afforded the
opportunity to consult with an attorney prior to each of the
NJP's at issue.
Petitioner provides no evidence that these
entries are erroneous.
service members are not
entitled to consult with counsel before imposition of NJP.
Although the opportunity to consult with counsel is a
prerequisite for the admission of NJP records as sentencing
evidence at a subsequent court-martial,
to the imposition of NJP itself.
entitled to any relief based on his assertion that he did not
consult with an attorney prior to NJP.

it is not a prerequisite
Accordingly, Petitioner is not

Moreover,

C .

Petitioner's claim that his NJP on   30 June 1987 never
occurred is without merit.
As previously noted, a presumption
of regularity attaches to official records, and the burden is on
the Petitioner to provide evidence that the NJP did not occur.
Petitioner fails to provide any such evidence.

d.

Petitioner's claim that he had refused his 30 June 1987

NJP and requested trial by court martial is without merit and
would not provide any grounds for relief.
Petitioner's SRB
contains a page   12 entry, dated 29 June 1987, that he asserts
memorializes his refusal of NJP,
initialed the words "do not" in the sentence ‘I (do) (do not)
choose to exercise that right."
reveals, however,
in the same sentence.
as an initial refusal of NJP,

Even if this ambiguity were interpreted

that Petitioner also crossed out the word "do"

A review of the page 12 entry

where he struck out and

Petitioner's subsequent acceptance

3

Subj:

BOARP FOR CORRECTION OF NAVAL RECORDS

(BCNR) APPLICATION

of NJP and his failure to appeal the NJP would nullify his
present claim.

e.

Petitioner's claims that he was denied access to an

attorney and received inadequate representation at his
administrative separation board are without merit.
exact nature of Petitioner's complaint is unclear,
stem from the denial of his attorney's request for additional
time to prepare for the board.
Petitioner's administrative separation board did, in fact, deny
the attorney's request for a continuance, that fact alone does
not establish that Petitioner received inadequate representation
or was otherwise prejudiced by the denial.
Indeed, Petitioner
fails to proffer any prejudice, however speculative.

While the senior member of

Although the
it appears to

f.

Petitioner claims that his administrative separation

Although misconduct from a prior

board improperly considered an NJP from a prior enlistment.
This claim is without merit.
enlistment may not be considered on the issue of
characterization of service,
purpose of determining whether separation is appropriate.
Finally,
Petitioner's citations to legal precedent in Oklahoma
and to the United States Sentencing Guidelines are irrelevant.
Petitioner's administrative separation board was not a criminal
trial in either U.S.
court.

district court or in an Oklahoma state

it may be considered for the

Conclusion.

5 .
Petitioner's request for relief be denied.

For the reasons noted, we recommend that

Assistant Head, Military Law Branch
Judge Advocate Division

4