DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORDS

2 

NAVY 

ANNEX

WASHINGTON DC 20370.5100

CRS
Docket No: 4764-01
22 July 2002

From: Chairman, Board for Correction of Naval Records
To:
Subj:

Secretary of the Navy

AL RECORD OF

(a) 10 U.S.C. 1552

Ref:
Encl: (1) Case Summary

(2) Subject's naval record

1 . Pursuant to the provisions of reference (a), Petitioner, an
enlisted member of the Marine Corps, applied to this Board
requesting, in effect, that his naval record be corrected by
restoring him to the rank of sergeant (SGT; E-5).
2. The Board, consisting of Messrs. Kastner, Shy, and Brezna,
reviewed Petitioner's allegations of error and injustice on 19
June 2002 and, pursuant to 'its regulations, determined that the
corrective action indicated below should be taken on the
available evidence of record.
the Board consisted of the enclosures, naval records, and
applicable statutes',
3. The Board, having reviewed all the facts of record pertaining
to Petitioner's allegations of error and injustice finds as
follows:

Documentary material considered by

regulations and policies.

a. Before applying to this Board, Petitioner exhausted all

administrative remedies available under existing law and
regulations within the Department of the Navy.

b. Petitioner's application to

manner.

the Board was filed in a timely

C . On 12 July 1995 Petitioner enlisted in the Marine Corps
Reserve and on 29 May 1998 enlisted in the Regular Marine Corps.
The record reflects that until the incident at issue, Petitioner
served well and without disciplinary infractions and was advanced
in rank to SGT.

d. Petitioner participated in a hazing incident on 5 April
The incident involved splitting the company into two
"oldI' Marines and the other called the
"old" Marines who
aboard" hazing ritual.

2000.
groups, one called the
"newI Marines.
organized this "welcome 

PetitYioner was part of the 

Basically, the

be directed into a room one by one, told to
ltnewtt Marines would
desk, and then grabbed from behind by an
stand in front of a
.
"oldI' Marine who would be joined by the others in wrestling the
"newtt Marine to the floor.
The time was controlled by Petitioner
and two other 
lInewIt
ttchaplain  
This incident was called a 
Marines complained about the incident.

SGTs to last between 30 seconds to two minutes.

One of the 

session.tt

. 

e. On 

9 May 2000 a formal command investigation was conducted
The investigation found that
into the incident of 5 April 2000.
a formation had been called by Staff Sergeant (SSGT; E-6) M for
the purpose of accountability and the presentation of a plaque.
He departed immediately after the formation with SSGT J. A
question was asked after the formation by someone about a
"chaplain 
formed into two groups, one of
"oldtt Marines.
that it was going on.
However, the two SSGTs stated afterwards
that they did not consider it hazing.
The investigation also
cited Marine Corps Order (MCO) 1700.28, of 18 June 1997, that
prohibited events such as the one occurring on 5 April 2000, and
classified such events as hazing.

As a result of the question, the platoon was
The hazing was stopped when SSGTs M and J learned

ttnewtt Marines and the other of

session.tt

f. One of the

"going to see the 

ltoldtt Marines made a statement that implicated
the company commander, Captain (CAPT; O-3) 0.
The Marine stated
that on different occasions that CAPT 0 had asked him when the
new Marines were
chapl%n.tt The implication
was that CAPT 0 knew what a 
Later, the
same Marine acknowledged that he could not specifically say that
CAPT 0 knew that a '@chaplain  
aboard for the 
"newIt Marines.
that none of the Marines said that this welcome aboard was called
a 
ltoldtt
Marine said that he felt there was a linkage between CAPT 0
inquiring about the new Marines going to see the chaplain and the
"chaplain 
spontaneous event.

sessiontt was a formalized welcome
The command investigation found

tloldtt Marine also stated that it was a

In another interview, the same 

sessiontt  was.

ttchaplain 

"chaplain 

session.tt

session.tt

The 

40 CAPT 0 recalled the conversation with the 

stated that there was no double meaning when he inquired about
the Marines visiting the chaplain.
witnessed occasional wrestling among his Marines, but viewed it
as part of the whole platoon's interest in professional
wrestling.
During the command investigation, Gunnery Sergeant
(GYSGT; E-7) F was interviewed,
but could not recall any officer
ttgoing to see the
or senior enlisted individual using the term 
chaplain" in the context of a wrestling match or a welcome aboard
for

He admitted that he had

lInewIt Marines.

ttoldll Marine but

h. The investigation concluded that the wrestling witnessed by

the officers and 
universally viewed as good-natured horseplay until it was

seniw enlisted members of the platoon was

2

witnessed and stopped by SSGTs M and J on 5 April 2000.
However,
before that date, the wrestling had taken place in public and not
in a closed room.
Otoldtt
Marine's accusation that CAPT 0 knew what was going on was found
Further, the investigation found it was not
to be an assumption.
reasonable for the Marines to assume that the officers would know
what a 

"chaplain session" was prior to 5 April 2000.

In the opinion of the investigator, the 

i. The command investigation recommended that CAPT 0 be the

subject of a non-punitive letter of caution since he knew or
reasonably should have known that the public horseplay occurring
in his platoon could develop into hazing.
recommended that the Petitioner receive a non-punitive letter of
caution for "initiating,
encouraging and recklessly permitting
this hazing to  
Letters of caution were also recommended
for the two SSGTs.

It was also

occur.lt

The punishment imposed consisted of a

' On 12 May 2000 the commanding officer imposed nonjudicial
.
MC0 1700.28
There is no

punishment (NJP) on Petitioner for failure to obey 
pertaining to hazing.
reduction in rank from SGT to corporal (CPL; E-4).
evidence that the NJP was appealed.
Offenses and Punishment page in Petitioner's record documenting
the NJP.
The only documentation in the record at this time is
the Commandant Directed (DC) fitness report for the period 5-12
May 2000, which was prepared
ttbecause  (Petitioner) received  

NJP."
k. In his application, Petitioner contends that although three

Further, there is no

Marines received NJP for the incident at issue, one of these
Marines was not reduced in rank.
was unfair.

He contends that this outcome

1. An advisory opinion from the Staff Judge Advocate (SJA) to

the cases are factually  

ttabsolve Petitioner from his own misconduct."

In this regard, the SJA notes
Moreover,

the Commandant of the Marine Corps (CMC), dated 1 August 2001,
recommended that relief be denied.
that in the situation at issue,
the misconduct of other Marines
does not 
disparate treatment only provides grounds for relief if certain
factors exist:
treatment of co-accused is widely dissimilar; and the
dissimilarity resulted from an improper motive on the part of the
authority that jointly disposed of the offenses.
None of these
factors were present in this case.
admission, the only sergeant involved in the misconduct who did
not receive a reduction had only been recently promoted to the
rank of SGT, and Petitioner had been a sergeant for over 18
months.
an impermissible motive for the differences in punishment.

Lastly, the opinion noted that Petitioner 

indistinguisable; the

By Petitioner's own

did,not allege

but not the sort of disparate

Accordingly, the Board holds him primarily

CONCLUSION:
Upon review and consideration of all the evidence of record, the
Board concludes that not only should the record be corrected to
show that Petitioner was not reduced from SGT to CPL, the NJP
In this regard,
should be removed from the record altogether.
the Board agrees with Petitioner that this is a case about
unjustly disparate treatment,
treatment that he alleges or that the SJA to CMC addresses in the
advisory opinion.
Simply put, the Board believes CAPT 0 either knew about the
sessions,lt or took great pains to be unaware of this
"chaplain 
minor hazing.
It also does not appear from the
responsible for the incident.
record that any serious adverse action was taken against him.
it is certainly unfair
Even if he received a letter of caution,
that Petitioner received NJP and a reduction in rank for actions
that were, at least implicitly, authorized or tolerated by the
command.
In addition, the Board notes that the hazing at issue was
relatively minor in nature.
injure any of the 
Itnewtt Marines, and none of these Marines were,
in fact, hurt.
The Board notes that the investigating officer, a
Marine captain, concluded that the interest of discipline could
be adequately vindicated by the issuance of letters of caution to
all concerned.
This recommendation seems to the Board to have
been a
ttgood 
case, given the fact that he had no prior disciplinary actions
and his record of good performance.
Accordingly, the Board believes that the NJP, and all related
documentation, should be removed from Petitioner's record.
RECOMMENDATION:

There clearly was no intent to

call.lt

This is especially true in Petitioner's

a. That Petitioner's naval record be corrected by removing all
references to the NJP of 12 May 2000,
to any entry on an Offenses and Punishments page (page 12) in his
field records.

including but not limited

b. That the record be further corrected to show that

Petitioner was never reduced in rank from SGT to CPL.

C . That the record be further corrected by removing the 

fitness report for the period 5 to 12 May 2000.

ttDCtt

d. That any material or entries inconsistent with or relating
to the Board's recommendation be corrected, removed or completely
expunged from Petitioner's record and that no such entries or
material be added 

to-the record in the future.

4

e. That any material directed to be removed from Petitioner's
together with a copy of
for retention in a confidential file
with no cross reference being made a

naval record be returned to the Board,
this Report of Proceedings,
maintained for such purpose,
part of Petitioner's naval record.
4. It is certified that a quorum was present at the Board's
review and deliberations,
complete record of the Board's proceedings in the above entitled
matter.

and that the foregoing is a true and

ROBERT D. ZSALMAN
Recorder
5 . The foregoing action of
and action.

//S/H

.

Acting Recorder

the Board is submitted for your review

Reviewed and approved:

SEF 

-1 

0 

':'-I?7

G. Lynch

w*Jo
Assistant General Counsel
(Manpower and Reserve Affairs)

5