DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORD

NAVY 

ANNEX

2 

WASHINGTON DC 20370-510

0

S

CRS
Docket No: 
16  June  2002

8054-01

From: Chairman, Board for Correction of Naval Records
To:

Secretary of the Navy

RD 

OF,

(a) 10 U.S.C. 1552

Ref:
Encl: (1) Case Summary

(2) Subject's naval record

1. Pursuant to the provisions of reference (a), Petitioner, an
enlisted member of the Marine Corps, applied to this Board
requesting, in effect,
that his naval record be corrected by
restoring him to the rank of sergeant (SGT; E-5).
2. The Board, consisting of Messrs. Rothlein, 
reviewed Petitioner's allegations of error and injustice on 12
June 2002 and, pursuant to its regulations, determined that
corrective action should be taken on the available evidence of
record.
of the enclosures, naval records,
regulations and policies.
3. The Board, having reviewed all the facts of record pertaining
to Petitioner's allegations of error and injustice finds as
follows:

Documentary material considered by the Board consisted

and applicable statutes,

Caron, and Agresti,

a. Before applying to this Board, Petitioner exhausted all

administrative remedies available under existing law and
regulations within the Department of the Navy.

b. Petitioner's application to the Board was filed in a timely

manner.

C . On 13 October 1999 Petitioner enlisted in the Marine Corps
He then remained on active duty in support of
The record reflects that until the incident at

Reserve after more than eight years of prior active service with
the Marine Corps.
a reserve unit.
issue, Petitioner served well and without disciplinary
infractions.

d. Petitioner was arrested and confined by civil authorities
on 24 March 2001 for domestic violence upon an enlisted female
Marine with whom he 
Upon being confined, he called
his command and was informed by a staff sergeant (SSGT; E-6) that

rJas living.

he was to be placed on leave.
the SSGT stated that leave was
Petitioner's application,
authorized by a master gunnery sergeant (MGYSGT; E-8).
Petitioner was released from confinement on 29 March 2001.
e. On 11 April 2001 Petitioner was convicted by civil

In a statement submitted with

authorities of domestic violence.
three years probation and a fine of $300.
probation were 14 days of supervised public service,
participation in 10 weeks of various meetings and enrollment in a
domestic violence prevention program.
was ordered to have

The court sentenced him to

contacttl  with his victim.

Additionally, Petitioner

The conditions of the

"no 

f. On 2 June 2001 the commanding officer (CO) imposed

nonjudicial punishment (NJP) on Petitioner for unauthorized
absence (UA) from 25 to 29 March 2001.
consisted of a reduction in rank from SGT to corporal (CPL; E-4).

The punishment imposed

He argued that

g. On 7 June 2001 Petitioner appealed the NJP.

"run on 

he was being used as an example and the punishment was unjust.
In this regard, he noted that the SSGT and MGYSGT had said that
leave" for the period he was confined
he was going to be 
by civil authorities.
Accordingly, he did not immediately bail
himself out of jail.
He stated he was innocent of the charge.
Further, he stated that many Marines at the command were
unauthorized absentees on a weekly basis, but none received NJP.
In doing
so, the appeal authority stated that the evidence showed that
Petitioner was in the hands of civil authorities and, therefore,
he was an unauthorized absentee.
Lastly, the appeal authority
stated that at no point did he expect a noncommissioned officer
(NCO) to be an unauthorized absentee.

h. On 2 July 2001 Petitioner's appeal was denied.

i. In his application, Petitioner contends that it was unfair

to impose NJP for the four day period of UA because 
bailed myself out and would have if I knew I was going to be
charged..."
He points out the statement of the SSGT to the
effect that he would be placed on leave and states that this
individual was unavailable during the NJP process.

"1 could have

j. An advisory opinion from the Staff Judge Advocate (SJA) to

the Commandant of the Marine Corps, dated 18 April 2002,
recommends that relief be denied.
The SJA states that in the
situation at issue, the absence may be excused as unavoidable
only if it is clearly established that the arrest and detention
was not caused by the misconduct of the Marine.
The opinion
further states that it is irrelevant whether or not Petitioner
was granted leave after he was confined, because clearly he was
absent from his unit without authority for at least that period
of time.
.$O was not authorized to subsequently excuse
the absence, the NJP for UA was entirely appropriate.
Finally,

Since the 

2

the SJA notes that only 
liberty, and not staff 
MGYSGT.

CO's are authorized to grant leave and
NCO's 

(SNCO's) such as the SSGT and

k. In Petitioner's first rebuttal to the advisory opinion, he
states that "integrity is the question here.
told me they were going to run me on leave...1 however was never
run on leave."
that wrote the advisory opinion told him that he had been
"railroadedtt.
Petitioner states that the MGYSGT was the direct representative
of his CO, and he has even seen 
command.

SNCO's
Further, he says that a sergeant in the office
Concerning the authority to grant leave,

CPLs sign leave papers at his

Two of my 

1. In Petitioner's second rebuttal,

he again points out that
he was confined on a Saturday and could have made bail in order
to be at work on Monday.
authorization that was signed by a SSGT, and not by the CO.
Lastly, he states that he was not authorized to go beyond the
MGYSGT in the chain of command without requesting mast.

He also submits a recent leave

MAJORITY CONCLUSION:
Upon review and consideration of all the evidence of record, a
majority of the Board, consisting of Messrs. Rothlein and
Agresti, concludes that Petitioner's request warrants favorable
action, specifically, removal of the NJP from the record.
The majority has several reasons for concluding that the NJP
should be removed.
First, the majority believes that, contrary
to the statement in the advisory opinion, either the SSGT or the
MGYSGT may well have had the authority to grant Petitioner leave.
While the governing directive may reserve this authority to the
CO, it would not appear that there is any prohibition against
delegating the authority to a lower level, such as the MGYSGT.
However, even if neither the MGYSGT or the SSGT had actual
authority to grant Petitioner leave,
it appears that they held
themselves out as being so authorized, and Petitioner believed
them.
The majority believes that Petitioner's reliance, even
though incorrect, was not unreasonable under the circumstances.
Accordingly, even if it was technically proper to deem Petitioner
UA and punish him at NJP,
such action was unfair and should not
be permitted to stand.
Finally, the majority believes that the adverse 
case was influenced by Petitioner's underlying misconduct of
domestic abuse, and the command took the harshest action they
could against Petitioner.
condones Petitioner's domestic violence.
However, his civil
conviction for this 

incident is not the subject of his

In this regard, the majority in no way

action,in this

3

application, and references to that conviction will remain in the
record regardless of the outcome of this case.
RECOMMENDATION:

a. That Petitioner's naval record be corrected by removing all

references to the NJP of 2 June 2001,
to any entry on the Offenses and Punishments page (page 12).

including but not limited

b. That the record be further corrected to show that

Petitioner was never reduced in rank from SGT to CPL.

c. That any material or entries inconsistent with or relating
to the Board's recommendation be corrected, removed or completely
expunged from Petitioner's record and that no such entries or
material be added to the record in the future.

together with a copy of

Caron cannot go along with the recommendation of the majority

d. That any material directed to be removed from Petitioner's
for retention in a confidential file
with no cross reference being made a

naval record be returned to the Board,
this Report of Proceedings,
maintained for such purpose,
part of Petitioner's naval record.
MINORITY CONCLUSION:
The minority member of the 'Board, Mr. 
Caron, agrees with the
majority that corrective action is warranted, but believes such
action should be limited to granting Petitioner's request to
restore him to the rank of SGT.
Mr.
to remove the NJP because he agrees with the advisory opinion
that Petitioner was, in fact, UA from 25 to 29 March 2001.
Accordingly, he cannot fault the CO for imposing the NJP.
However, the minority member does believe that the
representations made to Petitioner to the effect that he would be
Taking
granted leave constitute a mitigating factor in the case.
along with Petitioner's many years of
this factor into account,
unblemished service, the minority believes that an unsuspended
reduction was unduly harsh punishment.
concludes that the record should be corrected to show that the
reduction in rank imposed at the NJP was suspended for six
months.
MINORITY RECOMMENDATION:
a. That Petitioner's naval record be corrected to show 
the NJP of 2 June 2001,
suspended for a period of six months.
b. That the record be further corrected to show that Petitioner
was never reduced 

Accordingly, the minority

the reduction from SGT to CPL was

.that at

in-rank from SGT to CPL.

4

c. That any material or entries inconsistent with or relating to
the Board's recommendation be corrected, removed or completely
expunged from Petitioner's record and that no such entries or
material be added to the record in the future.
d. That any material directed to be removed from Petitioner's
together with a copy of
naval record be returned to the Board,
this Report of Proceedings,
maintained for such purpose,
part of Petitioner's naval record.
4. It is certified that a quorum was present at the Board's
review and deliberations,
complete record of the Board's proceedings in the above entitled
matter.

for retention in a confidential file
with no cross reference being made a

and that the foregoing is a true and

ROBERT D. ZSALMAN
Recorder
5. The foregoing action of the Board is submitted for your review
and action.

Acting Recorder

MAJORITY REPORT:
Reviewed and approved:

MINORITY REPORT:  
Reviewed and approved:

”

I; 

:02

(Mani;ower and Reserve A

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