DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY
ANNE
X
WASHINGTON DC 20370-5100
CRS
Docket No: 5158-00
11 April 2001
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.
A three-member panel of the Board for Correction of Naval
Records, sitting in executive session, considered your
application on 11 April 2001.
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
and policies.
opinion furnished by Headquarters Marine Corps dated 28 February
2001, a copy of which is attached.
In addition, the Board considered the advisory
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.
concurred with the comments contained in the advisory opinion.
The names and
Accordingly, your application has been denied.
votes of the members of the panel will be furnished upon request.
In this connection, the Board substantially
It is regretted that the circumstances of your case are such that
You are entitled to have the
favorable action cannot be taken.
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
Enclosure
2
DEPARTMENTOFTHEikY
HEADQUARTERS UNITED STATES MARINE CORPS
2 NAW ANNEX
WASHINGTON. DC 20380-1775
IN REPLY REFER TO:
1070
JAM4
8 FEE
2
2001
MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF
NAVAL RECORDS
Subj:
BOARD FOR CORR
ICATION
1.
We are asked to provide an opinion on Petitioner's request
that the reduction from sergeant to corporal he was awarded at
his non-judicial punishment (NJP) on June 15, 2000 be suspended
and that he be reinstated to the grade of sergeant.
We recommend that the requested relief be denied.
2.
analysis follows.
Our
3.
Background.
a.
On 8 January 2000, Petitioner, then a sergeant, was
approached by a junior Marine in the barracks and informed that
several Marines were having group sex with a female in a nearby
room.
Petitioner accompanied the Marine to the barracks room
where the group sex was occurring and upon entering the room,
19-year old
observed one Marine having sexual intercourse with a
female, a second Marine receiving oral sex from the same female,
and a third Marine watching the activity.
stop to an ongoing violation of the UCMJ, Petitioner decided to
participate, approached the female, and placed his penis in her
mouth as another Marine was engaged in sexual intercourse with
Petitioner then exhorted the other Marine to get off the
her.
woman so that he could have sexual intercourse with her.
Petitioner then attempted to have sexual intercourse with the
woman, stopping only when she began to cry and told him to get
off.
Rather than put a
')
b.
After investigation by NCIS non-substantiated rape and
forcible sodomy charges, Petitioner received NJP, on 15 June
2000, for sodomy and committing an indecent act with another, in
violation of Articles 125 and 134 of the Uniform Code of
Military Justice (UCMJ).
grade from sergeant to corporal, forfeiture of $780.00 pay per
Petitioner was awarded reduction in
Subj:
BOARD
FOR CORRECTION OF NAVAL RECORDS (BCNR) APPLICATION
month for 2 months, and 60 days restriction.
restriction for 60 days were suspended for 2 months.
appealed the punishment as excessive, arguing that he had the
most passing sexual contact with the woman, but received the
greatest punishment.
Petitioner's appeal was denied.
The forfeiture and
Petitioner
4.
Analysis.
a.
Petitioner's claim that the punishment he received was
disproportionate to the offense is without merit.
punishment he was awarded at NJP was within the commanding
Instead of
officer's authority, and was also appropriate.
stopping the ongoing group sex with an apparently intoxicated
female, Petitioner engaged in sodomy, and attempted to engage in
sexual intercourse with her, all in the company of Marines
junior in rank to himself.
The
b.
Relief is not warranted based on Petitioner's claim that
Disparate treatment exists
None of these factors are present in this case.
he received disparate treatment.
only where cases are factually indistinguishable, where the
treatment of co-accused is widely disparate, and where there is
a showing that the disparate treatment resulted from improper
motive on the part of the authority who jointly disposed of the
offenses.
First, Petitioner's case is not factually indistinguishable
because, as the senior Marine involved, Petitioner was not
similarly situated with the other Marines.
received NJP from a different squadron commander than his
actors.
widely disparate, as all received NJP rather than a court
Finally, Petitioner has made no showing that an
martial.
"
impermissible motive influenced the outcome in his case.
Accordingly, the fact that the other Marines involved in the
incident did not receive a reduction in rank does not provide
grounds for relief.
co-
Third, the treatment of the Marines involved was not
Second, Petitioner
Conclusion.
5.
requested relief be denied.
For the reasons note
recommend that the
,
’
Assistant Head, Military Law Branch
Judge Advocate Division
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