DEPARTMENTOFTHE NAVY

BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAVY ANNEX

WASHINGTON DC 20370.5100

BJG
Docket No: 5075-02
2 October 2002

Dear Gunnery

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.

It is noted that the Commandant of the Marine Corps (CMC) has amended the contested
fitness report for   29 June to 13 August 2001 by removing all references to events that
happened after the period concerned.

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 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 report of the Headquarters Marine Corps (HQMC) Performance Evaluation
Review Board 
Military Law Branch, Judge Advocate Division  
copies of which are attached.
nonjudicial punishment of 13 August 2001.

(PERB), dated 3 June 2002, and the advisory opinion from the HQMC

Documentary material considered by the Board

Finally, they considered the command file on the contested

(JAM7), dated 6 August 2002 with enclosure,

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 report of the PERB and the advisory opinion from JAM7.
contested fitness report, they found this report accurately stated your primary duty as
“NCOIC [noncommissioned officer in charge],  
for the latter portion of the reporting period.
Concerning
informed of what duties you were expected to perform after this suspension.
your objection that you were not formally counseled in writing about harassing telephone
calls, they found that your command properly dealt with this matter by taking disciplinary

” although you were suspended from this duty
They were unable to find you were not

Specifically concerning the

action against you.
In view of the above, your application for relief beyond that effected by
CMC has been denied. The names and votes of the members of the panel will be furnished
upon request.

 the circumstances of your case are such that favorable action cannot be

It is regretted that
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

copy to:
The Honorable Elijah J. Cummings
The Honorable Mary L. Landrieu

.

 

DEPARTMENT OF THE NAV

HEADDUAATERS  UNITED STATES MARINE CORP

3280 RUSSELL ROAD

QUANTICO, VIRGINIA 221 34-51 03

Y

S

IN REPLY REFER TO:

161 0
MMER/PERB
JliN  
~~02

0  3 

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF

NAVAL RECORDS

Subj:

Ref:

MARINE CORPS PERFORMANCE EVALUATION REVIEW BOARD (PERB)
ADVISORY OPINION ON BCNR APPLICATION IN THE CASE OF
GUNNERY 

SERGEA

USMC

(a) 
(b) 

GySg
MC0 

P1610.7E  

D Form 149 of 11 Mar 02

w/Ch 1-2

Per 

MC0 

1610.11C,

the Performance Evaluation Review Board,

1.
with three members present,
Gunnery 
Removal of the fitness report for the period 000629 to 010813
Reference (b) is the performance evalu-
(DC) was requested.
ation directive governing submission of the report.

met on 29 May 2002 to consider

petition contained in reference (a).

Sergean

The petitioner contends the reporting period does not

2 .
coincide with his billet description and believes the report is
In support of his
fraught with other administrative errors.
appeal, the petitioner furnishes his own statements, a copy of

e Letter of

3 .
administrative errors,
written and filed.

In its proceedings, the PERB concluded that, with minor

the report is procedurally complete as

The following is offered as relevant:

a.

In the petitioner's statement included with reference

At the time the report was adjudicated, both the

(a), wherein he challenges the fitness report, he has done
nothing more than restate what he provided in his official
rebuttal.
Reviewing and Third Sighting Officers thoroughly resolved
the petitioner's concerns, albeit not in his favor.
petitioner's commentary and the advocacy letters provided with
reference (a) not withstanding,
that the report is either in error or unjust.
stated, the petitioner made significant errors in judgment and
was correctly held accountable,
reported via the performance evaluation system.

Succinctly

all of which has been correctly

the Board finds nothing to prove

The

Subj:

MARINE CORPS PERFORMANCE EVALUATION REVIEW BOARD (PERB)
ADVISORY OPINION ON BCNR APPLICATION IN THE CASE OF
GUNNERY SERGEANT

USMC

b.

The Board observes that issues occurring subsequent to

the end of the reporting period were incorrectly included in the
fitness report.
removal of the report is either necessary or warranted.
Instead,
below be eliminated from the fitness report at issue:

They do not, however, find that complete

t-hat the verbiage identified

the Board has directed  

(1) From Section I:

MCRD/ERR on 20010917,
repremand from Distri
2001."

"Appeal was denied by the CG,

eceived a punitive letter of
fficer on 17 September

(2) From paragraph six on the Addendum Page (MRO
Page 3 of 3) signed by subject on 20011116:

Statement,
Fitness Report also stated I received my Letter of Reprimand
from the District Commanding Officer on 17 September 2001. I
never received it until 8 October 2001 when I signed it."

"The

(3)  From paragraph

Statement) signed by Colone
"MRO appealed the NJP to the CG, MCRD/ERR,  
appeal was denied on 20010917."

n 20011126:

Parris Island and the

based on deliberation and secret ballot
as modified, should
ficial military
3b(l),

The corrections identified in subparagraphs  

3b(3) are considered sufficient.

The Board's opinion,

4 .
vote, is that the contested fitn
Sergean
remain a part of Gunnery  
record.
3b(2), and 
5 .

The case is forwarded for final action.

WI Chairperson,

Performance

Evaluation Review Board
Personnel Management Division
Manpower and Reserve Affairs
Department
By direction of the Commandant
of the Marine Corps

2

DEPARTMENT OF THE NAVY
HEADQUARTERS UNITED STATES MARINE CORPS

2 NAVY ANNEX

WASHINGTON, DC 20380-1775

MEMORANDUM FOR EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF NAVAL

RECORDS

Subj:

BOARD FOR CORRECT10
ICO GUNNERY
SERGEAN

Encl:

(1) Pre-Trial Agreement

ION

1.
We are asked to provide an opinion on Petitioner's request
for the removal from his service record book (SRB) and official
military personnel file (OMPF) of all entries related to the
non-judicial punishment (NJP) he received on 13 August 2001.

2 . We recommend that Petit
Our analysis follows.

3.

Background

ioner's request for rel ief be denied.

a.

On 13 August 2001, Petitioner, a gunnery sergeant

received NJP for false official statement, sodomy,

(GySgt),
adultery, indecent exposure, and indecent language, in violation
of Articles 107, 125,
Military Justice (UCMJ).
$1,333.00 pay per month for 2 months and a letter of censure.

Petitioner was awarded a forfeiture of

128, and 134 of the Uniform Code of

b.

On 16 August 2001,

Petitioner appealed his NJP on the

grounds that the punishment imposed was illegal arguing the
evidence did not amount to a preponderance of the evidence. On
17 September 2001,
Depot/Eastern Recruiting Region,  
denied Petitioner's appeal.

Marine Corps Recruit
Parris  Island, South Carolina,

the Commanding General,

Petitioner, however,

claims that his NJP was

Analysis.

No legal error occurred in the imposition of

4.
Petitioner's NJP.
unjust because the commanding officer committed procedural error
by imposing punishment based upon evidence not amounting to a
preponderance of the evidence.
he was not provided his rights notification, therefore he did
not know he could call witnesses on his behalf.
asserts that he was denied the right to hear the testimony of
the victims since the commanding officer accepted written
statements.
is addressed separately below.

Petitioner's claims are without merit.

Petitioner further asserts that

Each claim

Petitioner also

,

Subj:

BOARD FOR CORRECT10
SERGEAN
ICO GUNNERY

AL RECORDS

a.

Insufficient Evidence.

Petitioner's claim that the

Therefore,

Non-judicial

the formal rules of evidence do not apply.

cornmandinq officer committed procedural error by imposing NJP
with insufficient evidence is without merit.
punishment is an administrative proceeding, not a criminal
trial.
Moreover, the standard of proof at NJP is
the evidence" rather than
Petitioner's application to BCNR indicates that the alleged
victims provided the command with written statements describing
Petitioner's application describes
the incident.
this incident as a case of "he said, she said."
possible to determine exactly what evidence persuaded
Petitioner's commanding officer of his guilt, that officer could
properly choose to believe the alleged victim's statement over
the accuser's denials.

"beyond a reasonable doubt."

In addition,

"by a preponderance of

While it is not

b.

Rights notification.

Based on the documentary evidence

"that for good consideration and after

Similarly, Petitioner was informed of his right to demand

the NJP proceeding was conducted
rec'eived  all the rights to which he was
Petitioner was advised of his right to counsel

provided by Petitioner,
properly and Petitioner  
entitled at NJP.
on 13 August 2001 and talked to a military lawyer on the same
day.
trial by court-martial but instead elected to accept NJP.
Additionally, Petitioner signed a Pre-Trial Agreement (enclosure
l), which states,
both military and civilian.
consultation with my counsel,
agree to accept Commanding Officer NJP, to the charges and
specifications."
counseled by my detailed defense counsel and my civilian defense
concerning my rights and the possible punishments at
counsel,
NJP."
If Petitioner truly believed he was not guilty then he
should not have accepted NJP and instead forced the Government
to prove his guilt at a court-martial.
Petitioner understanding his rights at NJP is the fact
Petitioner also elected to have a
s in fact p
NJP, a
had a right to submit written matters for consideration by the
commanding officer,
Petitioner, a 
of his NJP, accepted NJP and was found guilty based on the
preponderance of the evidence presented at the NJP.

Finally,
GySgt with 16 years of active service at the time

The Petitioner also states that,  

Petitioner elected not to do so.

Further indicia of

"I have been

a witness at his
Although he

NJP.

I do

C .

Denied right to hear victim(s) testimony.

confront one's accuser(s) in a   criminal prosecution   is

The right to

2

Subj:

BOARD FOR CORRECTION OF NAVAL
ICO GUNNERY SERGEANT E

RECO

APPLICATION

MC

Specifically,

guaranteed in the Sixth Amendment to the U.S. Constitution.
This right is wholly inapplicable to NJP proceedings that are by
definition nonjudicial.
NJP is a disciplinary measure used by
commanders to maintain good order and discipline.
the rules of evidence do not apply at an Article 15 proceeding.
Petitioner had the opportunity to review the written statements
that formed the basis for his NJP offenses. Furthermore, when
asked by his commanding officer whether he could explain the
allegations raised against him, Petitioner responded,
have no idea why they say these things."
opportunity to address any bias,
fabricate that may have existed.
officer was in the best position to determine the credibility of
all witnesses and weigh the evidence for and against Petitioner.
Petitioner had an opportunity to present evidence regarding the
offense, to include evidence explaining and contradicting his
actions.
Petitioner's version of the facts.
Petitioner had the absolute'right to refuse NJP and instead
demand trail by courts-martial.
commanding officer imposed punishment, Petitioner could have
refused NJP.
because he was not permitted to confront his accusers then his
proper recourse was to refuse NJP.

Obviously, the commanding officer did not accept

If he believed that the NJP proceeding was unfair

prejudice or motive to

Petitioner's commanding

Thus Petitioner had an

"Sir, I

As discussed above,

Up until the point the

Conclusion

5 .
relief be denied

.

.

Accordingly

, we recommend that the requeste

d

Head, Military Law Branch
Judge Advocate Division

3

110 

(

5c 

Section,PISC 

,

(84

”

228-3649

p.3 

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