DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAVY ANNEX

WASHINGTON DC 20370-5100

ELP
Docket No. 7787-01
21 February 2002

Dear Sergeant

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.

considered your application on

Your allegations of error and injustice were

A three-member panel of the Board for Correction of Navy Records,
sitting in executive session,
20 February 2002.
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 advisory
opinions furnished by the Performance Evaluation Review Board,
Headquarters Marine Corps (HQMC), dated 26 November 2001, and the
Military Law Branch of the Judge Advocate Division, HQMC, dated
27 December 2001, copies of which are enclosed.

In this connection, the Board substantially

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.
Your contention that a statement you provided prior to the
imposition of NJP was used against you without first informing
you of your rights was in violation of Article 31, Uniform Code
of Military Justice is neither supported by the evidence of
record nor by any evidence submitted in support of your
Further, the Board is reluctant to substitute its
application.
judgment for that of the commanding officer (CO) who was on the
scene, had all of the evidence, heard your version of the events
and that of available witnesses.
evidence that the CO abused his discretionary authority when he
imposed nonjudicial punishment (NJP) on 10 March 2000.
such abuse, the Board concluded there was no compelling basis for
setting aside the NJP and removing it from your record.

The Board could find no

Absent

Further,

it appeared to the Board that the appeal authority thoroughly and
thoughtfully considered the contentions in your appeal, and
despite recommendations to the contrary,
suspended the reduction in rank.
for removing the NJP, there is also no basis for removal of the
contested fitness report.
denied.
furnished upon request.

The names and votes of the members of the panel will be

acted favorably when he
Since the Board found no basis

Accordingly, your application has been

It is regretted that the circumstances of your case are such
that favorable action cannot be taken.
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.

You are entitled to have

Sincerely,

W. DEAN PFEIFFER
Executive Director

Enclosures

DEPARTMENT OF THE NAV

Y

HEADQUARTERS UNITED STATES MARINE CORPS

3280 RUSSELL ROAD

QUANTICO. VIRGINIA 221 34-6103

IN REPLY REFER  

TO:

’

1610 
MMER/PERB
#IN  2001
2 6 

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

(a! Sergeant_DD Form 149 of 20 Sep 0
(b) 

P1610.7E  

w/Ch 1-2

MC0 

1

Per 

1.
with three members present,

1610.11C,

MC0 

the Performance Evaluation Review Board,

met on 20 November 2001 to consider

's petition contained in reference (a).

Removal of the fitness report for the period 990702 to 000411
(DC) was requested.
directive governing submission of the report.

Reference (b) is the performance evaluation

The petitioner contends the report was prepared by someone
Although not specifically

2.
who was not his Reporting Senior.
stated, the petitioner infers that a Lieutenant Colonel-
should have been the Reporting Senior of record since all work
related issues pertaining to his duties went directly to that
officer.
subsequently replaced him and filled the same billet description
and was responsible for the same duties.
Colonel

The petitioner also points out that a Sergeant Gomez

t fitness report.

Yet, Lieutenant

wrote Sergean

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 offers absolutely no corroboration or

evidence that CW04
We find no disclaimer

correct Reporting Senior.
, Lieutenant Colonel
ere is nothing from
indicating he should have been the

e or Colonel
Lieutenant Colone
Reporting Senior of record.
subsequently reported on by Lieutenant  
somehow question the validity of the challenged fitness report.

That Sergeant
Co1

does not

b.

What is paramount in this case is the incontrovertible

fact that the petitioner was the subject of nonjudicial

Subj:

MARINE CORPS PERFORMANCE EVALUATION REVIEW BOARD
 
ADVISORY OPINION ON BCNR APPLICATION IN THE CASE OF

(PERB)

punishment during the stated period.
correctly recorded via the performance evaluation system.

That matter has been

The Board's opinion,

4.
vote, is that the contested fitness report should remain a part
of Sergeant

based on deliberation and secret ballot

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

7#@!&  

. 

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HEADQUARTERS UNITED STATES MARINE

 

DEPARTMENT OF THE  

2 NAW ANNEX
WASHINGTON, DC 20380-1775

NAVY

CORPS

lN REPLY REFER TO:

1070
JAM 7

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF

NAVAL RECORDS

Subj:

BOARD FOR CORRECTION OF NAVAL RECORDS  

(BCNII)  APPLICATION

We are asked to provide an opinion on Petitioner's request

1.
that his non-judicial punishment (NJP) of 10 March 2000 be
removed from his service record   book and official military
personnel file (OMPF).

We recommend that the requested relief regarding removal of

2.
the NJP be denied.

Our analysis follows.

3.

Backaround

Two

a.

On 25 February   2000, Petitioner, a sergeant, pay grade

The Petitioner responded by saying

"that the conversation was originally
lieutenarnr  colonel and if the captain was

During the
the Petitioner was told by one of the captains, in

of E-S, was discussing an issue with a lieutenant colonel.
captains overheard the conversation and joined in.
conversation,
a loud tone, to "shut up."
words to the effect
between him   and the 
going to react that way then the captains should have kept their
opinions to themselves."
At this point the female captain told
the Petitioner to leave her workspace.
The Petitioner later
approached the female captain and said, "If there is a problem
with me you should take me outside and counsel me not yell and
try to embarrass me."
The two Marines stepped into a hallway
and began to discuss the issue.
intIthe  workspace.
other Marines  
Marine staff sergeant who subsequently controlled the Petitioner
by ordering him to stand at attention and be quiet.

The debate drew attention from
The argument was observed by a

b.

The following Monday,

Petitioner was directed by the

Petitioner was advised of his Article 31 rights;

executive officer to provide a statement, and he did.
March 2000,
accepted NJP (acknowledged that he could demand trial); and was
afforded the opportunity to consult with  
received squadron level NJP for disrespect towards a superior
commissioned officer,
Code of Military Justice  

in violation of Article 89 of the Uniform

Petitioner was awarded

Petitioner

counsel.

(UCMJ).

On 10

Subi:

BOARD FOR CORRECTION OF NAVAL RECORDS (BCNR) APPLICATION

reduction to pay grade E-4,
month for 2 months.
of $200.00 pay per month for 2 months for a period of 6 months.
Petitioner appealed.
grade was suspended for 6 months.

The NJP authority suspended the forfeiture

and forfeiture of $200.00 pay per

the sentence of  

Upon appeal  

r-eductioll  in

4.

Analysis

a.

Petitioner asserts two grounds for the relief he

First, he alleges a procedural error in the NJP

requests.
proceeding in that a statement made by Petitioner was used
against him in violation of Article 31,
Justice (UCMJ).
for the incident was an injustice because the officer towards
whom he was disrespectful was, "equally to blame."
are without merit.

Petitioner claims that being punished

Second,

Uniform Code of Military

Both claims

incriAminate

 

b.

Article 31(d),

Article 31(a), UCMJ, states,

UCMJ, provides the remedy for statements

"[n]o person subject to
this chapter may compel any person to incriminate himself or to
answer any question the answer to which may tend to
him."
taken in violation of Article 31 (a): "No statement obtained
from any person in violation of this article, or through the use
of coercion, unlawful influence,
or unlawful inducement may be
received in evidence against him in a trial by court-martial."
It cannot be determined, however,
provided by Petitioner,
concerning the incident in question were taken in violation of
We can, however, determine whether or not the
Article 31(a).
statements were used against Petitioner at a court-martial.
They were not;
is without 

whether or not Petitioner's statements

this was not a court-martial.

based upon the materials

merit.h

Petitioner's claim

C .

Petitioner's claim that the punishment was an injustice

because the officer was "equally to blame" is without merit.
Petitioner's statement to the Board,
to his application,
of guilty to a charge of disrespect toward a superior
commissioned officer in violation of Article 89, UCMJ.

provided as enclosure (2)
provides the factual predicate for a finding

' Petitioner also cites  
Martial.
M.R.E. 305(c),
courts-martial.

§'M.R.E  305(c)  

(2), Manual for  

Courts-

like Article 31,

UCMJ, only applies to

2

Subi:

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

ow appropriate respect to
yelling at me and putting
ry hard to render obedience

Finally,

"I then asked her,

"how am I going to obey a

listen patiently, without

Petitioner then treated the  

ho audaciously, complains that

Petitioner directly challenged Captain- authority as a
Marine officer,
leadership style that was without tact or disregard of my
position with the troops.""
as if he were her superior commissioned officer by imposing a
requirement that Captai
interruption, to Petition
"[s]he  [the captain] was trying to interrupt me."
Petitioner admits being unabl
Captainm"Due  to Captain
her finger in my face, I foun
to someone who treated me without any professional
tact.
As a result of my anger,   I disregarded 
request [to stand at attention for the captain]."
words, Pet
for Captai
request of a
Petitioner provides no evidence for Captain
to blame,
the staff sergeant who observed the
Petitioner to render obedience to Captain
standard in evaluating the superior
conduct under Article 89, UCMJ, towards Petitioner, is not
whether the superior commissioned officer was "equally to
blame," rather the standard is whether or not the officer's
behavior amounted to an abandonment of his or her rank.
Nothing in either statement comes close.
Even Captain
telling Petitioner to shut up does not meet the standard.
Telling a subordinate to "shut up"
however it does not amount to abandonment of rank
under the facts presented by Petitioner.
merit.

refused to come to the posi
in the presence of Captain
f noncommissioned officer.

either in his own statement,

commissioned officer's

altercation and asked

or i

may be rude and offensive,

 

- 

- especially

This claim is without

captai

SSgt

In other

of attention
at the
ionally,
being 
tatement of

equal1

Moreover, the

Conclusion.

5.
request for relief be denied.

Accordingly, we recommend that Petitioner's

,

Judge Advocate Division

3