DEPARTMENTOFTHE NAVY

BOARD FOR CORRECTION OF NAVAL RECORDS

2 

NAVY 

ANNEX

WASHINGTON DC 20370-5100

BJG
Docket No: 
22 November 2002

6056-02

SSGT##

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
vn 21 November 2002. Your allegations of error and
session, considered your application 
injustice were reviewed in accordance with administrative regulations and procedures
applicable to the proceedings of this Board. Documentary material considered by the 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 Performance (HQMC) Evaluation
Review Board (PERB), dated 27 June 
Military Law Branch, Judge Advocate Division 
which are attached. They also considered your rebuttal letter dated 18 July 

2002, and the advisory opinion from the HQMC

(JAM7), dated 4 September 2002, copies of

2002.

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, except the reference, in paragraph
4. b of the JAM7 opinion, to an offense of adultery; and the statement, in paragraph 4.a of
this opinion, to the effect that you do not claim you were denied the right to appeal the
contested nonjudicial punishment 
not allowed to appeal; however, they were unable to accept this allegation. They were not
convinced that your assignment with the United States Border Patrol precluded an appeal.
They were likewise unable to find you were denied counsel; that you were not allowed to
request a court-martial; or that you were not allowed to question your accuser, present
witnesses in your defense, or display the condition of your hands. They were unable to find
you were not on the firing line when the incident occurred. They were not persuaded that the

(NJP). They noted that in fact, you do allege that you were

battalion commander, the officer who conducted the NJP, was not objective, even if he did,
as you assert, interview recruits before assigning an investigating officer. They did not find
it objectionable that the NJP proceedings were conducted at the battalion level, rather than the
company level. They noted the provisions you cited from the Legal Administration Manual
apply to the Unit Punishment Book, rather than the service record page 12 ( “Offenses and
Punishments ”). Finally, your not having indicated, on the page 12, whether you did or did
not wish to exercise your right to refuse NJP did not persuade them that you made no
knowing waiver of that right.

Specifically regarding the contested fitness report, the Board was unable to find the reporting
senior marked you only on the basis of the incident for which you received NJP. They found
nothing objectionable in the comments of the third sighting officer (battalion commander) to
the effect he would have marked you lower than the reporting senior did in certain areas.
They were unable to find the reviewing officer changed his comments in response to undue
influence from the third sighting officer. They found nothing improper about the dates and
signing of material associated with the fitness report, regardless of when you were away from
the command. Finally, they noted that the report said nothing about revocation of your 8511
military occupational specialty (MOS); on the contrary, item 4.e showed  “8511” as your duty
MOS.

In view of the above, your application has been denied. The names and votes of the
members of the panel will be furnished upon request.

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

JEPARTMENT OF THE NAV

Y

HEADQUARTERS UNITED STATES MARINE CORPS

3280 RUSSELL ROAD

OUANTICO. VIRGINIA 221 34-51 03

IN REPLY REFER TO:

1610
MMER/PERB
2002
JUN  2  

i’ 

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 STAFF
SERGEAN

USMC

(a) S
(b) M

DD Form 149 of 20 Mar 02
h 1-4

Per 

MC0 

1610.11C,

the Performance Evaluation Review Board,

1.
with three mem
Staff 
Removal of the fitness report for the period 980110 to 980507
(CD) was requested.
directive governing submission of the report.

met on 26 June 2002 to consider

'petition contained in reference (a).

Reference (b) is the performance evaluation

Sergea

The petitioner alleges. he was not given the opportunity to

2.
appeal the nonjudicial punishment  
chance to present physical facts concerning the situation that
resulted in the imposition of NJP;
administrative error;
and that the Third Sighting Officer's
remarks/marks disagree with those of the Reporting Senior. To
support his appeal,

that the report contains an

tioner furnishes his own statements

(NJP): that he was not given a

th

from Mr.
Sergea
f 

In its proceedings, the PERB concluded that the report is

3.
both administratively correct and procedurally complete as
written and filed.
The following is offered as relevant:

a.

The petitioner has provided nothing to support his claim

of injustice or that he was denied an opportunity to appeal the
NJP (i.e.,
NJP occurred and was correctly recorded via the performance
evaluation system.
an error nor an injustice.

Unit Punishment Book (UPB)).

the Board discerns neither

Succinctly stated, the

In this regard,

b.

The Third Sighting Officer of record was well within his

prerogative when he offered his opinion concerning the severity
of the petitioner's actions and his belief that lower marks were
warranted.
Such action is well within the spirit and intent of
reference (b).

Subj:

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

USMC

C .

The advocacy statements included with reference (a),

while further expanding on the petitioner's performance and
accomplishments, do not refute the accuracy of the challenged
fitness report.

The Board's opinion,

4.
vote', is that the contested fitness  
of Staff Sergeant

based on deliberation and secret ballot
Dart
L

reoort should remain a  

I

official military record.

5.

The case is forwarded for final action.

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

IN REPLY REFER TO

1070
JAM7

MEMORANDUM FOR EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF NAVAL

RECORDS

Subj:

BOARD FOR CORRECTION OF NA
AFF SERGE
USMC

ATION

Encl:

(1) 

Cop9 of Petitioner's page 12 of 7 May 98

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) all entries related to the non-
judicial punishment (NJP) received on  

1998.

B Ma
7

&

We recommend that Petitioner's request for relief be denied.

2.
Our analysis follows.

7a
e( May 

On 

Background.

1998, Petitioner, a staff sergeant,

3.
pay grade E-6, accepted battalion level NJP for failure to obey
an order or regulation and cruelty and maltreatment in violation
of Articles 92 and 93 of the Uniform Code of Military Justice
(UCMJ).
month for a period of 2 months.
per month for 2 months was suspended for a period of 3 months.
Petitioner elected to not appeal his NJP.

Petitioner was awarded a forfeiture of $400.00 pay per
The forfeiture of $400.00 pay

Analysis.

4.
No legal error occurred in the imposition of NJP.
However, Petitioner now claims that the charges were unfounded,
unjust,
without merit.

As discussed below,

Petitioner's claims are

and untrue.

a.

Procedural rights.

Because the NJP occurred over 4

Additionally,

years before Petitioner's BCNR application, records are no
longer available regarding the NJP proceeding.
However,
enclosure (1) indicates Petitioner accepted NJP and chose not to
appeal its results.
enclosure (1) also indicates
that the Petitioner   was given an opportunity to consult with a
If Petitioner truly believed he was not guilty then he
lawyer.
should not have accepted NJP and instead forced the Government
to prove his guilt beyond a reasonable doubt at a court-martial.
Moreover,
his initial course of action was to appeal his NJP. If
appealed, Petitioner's NJP.would have been reviewed by the.

if Petitioner believed that his NJP was unjust, then

Subj:

BOARD FOR CORRECTION OF NA
AFF SERGE
USMC

TION

General Court-Martial Convening Authority to determine if the
punishment imposed was disproportionate or unjust.
However,
Petitioner did not appeal his punishment and does not claim that
he was denied the right to do so.

b.

NJP authority's interpretation of the facts.

The NJP

authority was in the best position to determine the facts
surrounding the case.
Petitioner claims that there was
insufficient evidence to conduct NJP and that he was unable to
offer any evidence in his defense.
authority, not Petitioner, who was responsible for determining
whether the preponderance of the evidence supported the  
ey.  At this time,
because there is no longer a
documentary record, we are not in a position to reexamine the
factual conclusions of the NJP authority.

it is the NJP

However,

offenses.-

C .

Allegations of misconduct by NJP authority.

Petitioner

implies that misconduct by.the   NJP authority, as evidenced by
his subsequent relief of duty due to moral and ethical issues,
contributed to the unjust NJP.
provided in support of his claim that the Battalion Commander's
removal was in any manner related to his NJP.

However, no evidence was

Conclusion.

5.
relief be denied.

Accordingly,

we recommend that the requested

Judge Advocate Division

Law Branch,

2