DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORD
X

2 NAVY ANNE

S

WASHINGTON DC 20370-510

0

CRS
Docket No: 4849-01
14 November 2002

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 6 November 2002.
injustice were reviewed in accordance with administrative
regulations and procedures applicable to the proceedings of this
Documentary material considered by the Board consisted of
Board.
your application, together-with all material submitted in support
thereof, your naval record and applicable statutes, regulations
In addition, the Board considered the advisory
and policies.
opinions furnished by Headquarters Marine Corps dated 1 August
2001 and 18 April 2002, copies of which are attached.
also considered your rebuttal statement of 23 August 2001.

The Board

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.
concurred with the comments contained in the advisory opinions.
The Board additionally concluded that your two nonjudicial
punishments  were more than sufficient to support the assignment
of the RE-4 reenlistment code.
been denied.
will be furnished upon request.

The names and votes of the members of the panel

In this connection, the Board substantially

Accordingly, your application has

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

DEPARTMENT OF THE NAVY
HEADQUARTERS UNITED STATES MARINE 

2 NAW ANNEX

WASHINGTON, DC 20380-1775

CORrS

IN REPL Y RE FER 

TO

MEMORANDUM FOR  

EXECU

TIVE DIRECTOR, BOARD FOR CORRECT
RECORDS

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BOARD FOR CORRECTION OF NAVAL RECORDS  

(BCNR) 

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We are asked to provide an opinion on Petitioner's  
the removal from his service record book

!c~r 
military personnel file  
non-judicial punishment (NJP) he received on 19
Petitioner also requests the restoration of all property,
privileges, and rights affected by that NJP.

(OMPF) of all entries related  

(SRB)  

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We recommend that Petitioner's request for relief  

2.
Our analysis follows.

Lc denied.

Background.

On 19 December 1997,

3.
received NJP
for unauthorized absence  
a&d disobedience of a lawful order- in
violation of Articles 86 and 92 of the Uniform Code of Military
Justice 
Petitioner, then a corporal, 
grade E-4,
of $598.00 pay per month for 2 months.
suspended for 6 months.
appeal was denied on 8 January 1998.

was awarded reduction in grade to E-3 and  

The forfeiture was
Petitioner's

(UCMJ), respectively.

Petitioner appealed.

Petitioner 

pa}'
forfeii.ure

Analysis.

No legal error occurred in the imposition of

Petitioner, however, now claims that his NJP was unjust

4.
NJ!?.
because he was not read or asked every question on the Office
Hours Guide and Summary of NJP Hearing.
claims that his NJP was unjust because a piece of official
correspondence erroneously referred to him as a corporal after
his reduction.
First,
while the Office Hours Guide and Summary of NJP Hearing provides
useful guidance to NJP authorities,
it is just that, guidance.
NJP authorities are not required to use it much less follow it
verbatim.
properly reduced to the grade of lance corporal.
clerical-
error referring to Petitioner as a corporal after his reduction
does not effect his promotion back to the grade of corporal.

Second, as a result of Petitioner's NJP, he was

Petitioner's claims are without merit.

In addition, Petitioner

A 

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BOARD FOR CORRECTION OF NAVAL RECORDS (BCNR) APPLICATION
IN THE CASE OF LANCE CORPORAL

USMC

Conclusion.

5.
relief be 

clenicd.

Accordingly,

we recommend that the requested

Head, Military Law Branch
Judge Advocate Division

DEPARTMENT OF THE 

NAVY

HEADQUARTERS UNITED STATES MARINE CORPS

2 NAW ANNEX

WASHINGTON, DC 20380-1775

MEMORANDUM FOR EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF

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IN REPLY REFER TO

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FOR 

i:ORRECTION  

OF NAVAL RECORDS

(BCNR)

APPI,IC'ATION

We are asked to comment  

on two issues in Petitioner's case.

1.
First, under what circumstances,
appropriate to punish Petitioner for violations of both Article
86 and 92, Uniform Code of Military Justice (UCMJ).
it proper and appropriate to punish Petitioner for missing
remedial physical training (PT) on 17 December 1997, given his
medical chits of 16 and 17 December 1997.

in this case, was it proper and

Second, was

Background.

Short answers.

On 19 December 1997,

First,! the doctrine of unreasonable

2.
multiplication of charges discourages charging both offenses.
Second, no error occurred in punishing Petitioner for missing
remedial PT on 17 December 1997.
3.
Petitioner received NJP
for unauthorized absence and disobedience of a lawful order in
violation of Articles 86 and 92 of the Uniform Code of Military
Justice 
(UCMJ), respectively.
remedial physical training  
both violations are for Petitioner's absence from remedial PT.
Petitioner, then a corporal, pay grade E-4, was awarded
reduction in grade to E-3 and forfeiture of $598.00 pay per
month for 2 months.
Petitioner appealed.
January 1998.

The forfeiture was suspended for   6 months.
Petitioner's appeal was denied on   8

(PT) by lawful written order and the

Petitioner was assigned to

4.

Analysis

a.

Appropriateness to punish Petitioner for violations of
As to the appropriateness and

both Articles   86 and 92, UCMJ.
legality of the NJP itself,
response (reference (a)).
question, the prohibition against unreasonable multiplication of

we refer back to our earlier
In response to your specific

Subj:

BOARD  FOR 

CURRECTION OF NAVAL RECORDS

(BCNR) APPLICATION

charges,' as applied at courts-martial,
provides a traditional
legal standard of reasonableness to address the consequences of
charging abuses.
Art_icle 92, UCMJ, violation is
for the unauthorized absence From remedial PT.
As a result,
Pet i t 
IJC?I,!, 
of 
i cl e 
Lhc? Art 
Given 
i! court  
t:hdt
 
Cou
ld
Petitioner should not be punished for both  

s’ 
Fac.t-s of 

absence 

Petitioner's 

tl-iggered  

ione 
t~he 

t.his case,

offerlses.

92, 
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110

(1) However, there is  

Petitionel~
received increased punishment because of the two Article 92,
UCMJ, violations.
punishment at NJP is not subject  
total number of offenses.
Furthermore, merely by accepting NJP
a servicemember potentially could receive the maximum punishment
for just one violation of any UCMJ offense.

Unlike a court-martial, the maximum

t.o change by the severity or

ndication that 

(2) Notwithstanding the Article 92, UCMJ, offenses,

As punishment,

Petitioner still accepted NJP for two separate violations of
Article 86, UCMJ.
than the maximum punishment.
suspended all forfeitures  
punishment Petitioner,
time, received for two incidents of unauthorized absence was
reduction to  

Moreover, the commanding officer
As a result, the only
(NC01 at the

a noncommissioned officer  

Petitioner was awarded less

E-3/lance corporal.

+for 6 months.

paygrade 

Appropriate to punish for missing PT on 17  

Dee 97.

b.

assiqninq him to

Petitioner received a lawful written order  
remedial PT and requiring him to report to remedial PT at
specific times and days.
Therefore, Petitioner had a duty to
report to remedial PT unless authorized by competent authority
to be elsewhere.
Petitioner's appeal of 22 December 1997, on 17 December 1997,
Petitioner reported for work at his normal time with the
civilian doctor's note restricting him from physical activities.
At no point during the NJP nor in his NJP appeal letter, did

According to the Office Hours Guide and

In Quiroz,

1 The concept  of unreasonable multiplication   of charges is addressed in   United
States v. Quiroz, 55 M.J. 334 (2001).
following factors as a framework to determine if the "piling on" of charges
is SO extreme or unreasonable as to warrant some relief:
object at trial that there was an unreasonable multiplication of charges
and/or specifications;
distinctly separate criminal acts;
specifications misrepresent or exaggerate the appellant's criminality; 
Does the number of charges and specifications unreasonably increase the
appellant's punitive exposure;
overreaching or abuse in the drafting of the charges?"
338-39.

(2) Is  each charge and specification aimed at
(3) Does the number of charges and

(5) Is there evidence of prosecutorial

the Court approved the

‘(1) Did the accused

55  M.J. 

Quiroz,

(4)

at

2

Subj:

BOARD FOR CORRECTION OF NAVAL RECORDS

(BCNR) APPLICATION

Additionally, 

PT, waited around,

L 

eport at 

0625 for remedial  

Petitioner indicate that he went to remedial
and then went to work and presented SS
with the civilian
doctor's chit.
In fact, the first time Petitioner asserts these
"facts" is in his petition to the Board for Corrections of Naval
Reco1-ds 
.
?etit_ioner
did 
present, as an NCO, Petitioner should have known to  
someone associated with the remedial PT program.
since Petitioner was late one
in fact report for remedial PT,
should have went directly to the headquarters building  
reported to someone senior to himself,
work at 0730.

mi!iimunr,
did
NC0 in his position

time earlier that week, if 

assumnc;, as he claims,

P'l' and found no one else

rather than 

report:ng  to

a reasonable 

t.hat 

1oca::c

At a 

he 

ar!d

Conclusion.

5.
request to reduce his punishment be-denied.

Accordingly, we recommend that Petitioner's

Judge Advocate Division

Law Branch

3