DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORD

S

2 NAVY ANNE

X

WASHINGTON DC 20370-510

0

BJG
Docket No: 43 13-02
3 October 2002

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 26 September 2002.
injustice were reviewed in accordance with administrative regulations and procedures
applicable to the proceedings of this 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 the Office of the Judge Advocate General, dated
8 July 2002, and a memorandum for the record (MFR), dated 25 September 2002, copies of
which are attached.

Documentary material considered by the Board

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, the Board substantially concurred with the comments contained
in the advisory opinion, as amended in accordance with the MFR, except they did not agree
that the Commanding Officer (CO), USS MERRILL letter of 28 June 1993, enclosure (2) to
your application, suggested an attempt to set aside the contested nonjudicial punishment. This
letter merely stated that you had been erroneously charged with a violation of Article 84,
Uniform Code of Military Justice; that you had been found not guilty of this charge; and that
the forfeiture of $275.00 per month for two months, the only punishment you were awarded,
should not have been taken out of your pay account.
in concluding that the evidence you provided, including the CO, USS MERRILL letter, failed
to establish that you were not found to have committed any of the offenses charged.
Accordingly, they were unable to find that the forfeiture was invalid. They were likewise
unable to 
misconduct you were found to have committed.
been denied. The names and votes of the members of the panel will be furnished upon request.

find what, if any, correction was warranted to reflect accurately the specific

In view of the above, your application has

They agreed with the advisory opinion

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
In this regard, it is
material evidence or other matter not previously considered by the Board.
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

DEPARTMENT OF THE NAVY

OFFKX OF THE 

JUDGE ADVOCATE GENERAL

AVENIJE SE SUITE 3000
1322 PATERSON 
WASHINGTON NAVY YARD DC 20374-5066

From: Deputy Director, Criminal Law Division (OJAG Code 20)
To:

Chaimlan, Board for Correction of Naval Records

ND RECOMMENDATION ICO GM

Ref

(a) BCNR ltr BJG Docket No. 04313-02 of 11 Jun 02 

(w/encl)

5800
Ser 
8 

JulO2

20/0032

1. Reference (a) requests comments and recommendation regarding the petition*
etitioner), USN, 266-39-0114, for correction of his naval record. T

makes the following requests; a) that his 
being dismissed, ”and b) that the forfeiture of pay resulting from the NJP be repaid to him.

“personnel record be updated to reflect NJP charges

2. BACKGROUND:

a. Petitioner went t

at Naval Recruiting District 
8 

(NRD) Omaha on 29 June

1992 charged wi
1, 84, 92 and 107. According to the record, he was
found in violation of articles 8 1 (conspiracy to enlist two individuals with false official
documents) and 84 (effecting the enlistment of an individual known to be ineligible for
enlistment). He was awarded forfeiture of $275.00 per month for two months
(NAVPERS 10701607 dtd 30 June 1992).

b. On 17 March 1993, the CO, USS Merrill (the Petitioner

’s new commander) sent a letter

to the CO, NRD Omaha requesting a copy of the Report and Disposition of Offenses
@DO) of Petitioner ’s NJP.On 13 April 1993, the personnel officer of the USS Merrill
tiled a new  “by dir ” NAVPERS 
NAVPERS 
modified. Finally, on 28 June 1993, CO, USS Merrill sent a letter-to the
Commander, Bureau of Naval Personnel requesting the removal of the article 84
conviction and the repayment of $550.00 forfeited by Petitioner as a result of his NJP.

1070/607 indicating a modification of the original
1070/607 was required, although it is not entirely clear what was to  be

m

3. DISCUSSION:

a. Removal of Article 84 Violation: The record indicates that the CO, USS Merrill

supports the Petitioner ’s claim that he was erroneously charged with violation of article
84, and that the conviction should be removed from his record. It is not clear from the
record, however, upon what authority that support is based. There is a separate charge
sheet in which some of the charges have been lined out, but that is in no way
dispositive. In fact, all other documentation, aside from the NAVPERS
April 1993, and the letter from the CO, USS Merrill, indicates that the conviction was
valid. This would suggest that the CO, USS Merrill is attempting to set aside the article
84 conviction. He does not have the authority to set aside Petitioner
because only the commander or NJP authority who imposed the NJP, or a successor in

1070/607  of 13

 

’s NJP, however,

ND RECOMMENDATION ICO

command may set aside an NJP. There is no indication in the record that his support of
the Petitioners claims are based on any other authority.

b.

Repayment of Forfeited Money: There is nothing in the record to support the
repayment of forfeited money to the Petitioner. Even if the article 84 violation were
erroneous and removed, a violation of article 81 subjects the guilty member to the
maximum punishment authorized for the offense which is the object of the conspiracy.
In this case the offense which is the object of the conspiracy is article 107 (false official
statements) which carries a maximum punishment of dishonorable discharge, forfeiture
of all pay and allowances, and confinement for 5 years.

3. Based on the foregoing, and without more conclusive proof that all the charges were
dismissed and the NJP set aside, the record should stand as is.

25 September 2002

MEMO FOR RECORD

Re: Cas

7 who signed the advisory opinion dtd 8 Jul 02 in
.a by acknowledging that not only the
commander or authority who imposed an NJP or a successor in command, but also the
current commanding officer has authority to set aside the NJP.

.. 

:* ’