DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORD

S

2 NAVY ANNE

X

WASHINGTON DC 20370-510

0

CRS
Docket No: 8327-01
11 July 2002

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 10 July 2002.
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.
advisory opinion furnished by Headquarters Marine Corps, a copy
of which is  

In addition, the Board considered the undated

Your allegations of error and

attachedL

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 opinion,
and also concluded that no clemency considerations warranted
favorable action on the sentence of the summary court-martial.
In accordance with applicable provisions of federal law, the
Board must limit its consideration to this issue when considering
courts-martial.
The names and votes of the members of the panel will be furnished
upon request.

Accordingly, your application has been denied.

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

Enclosure

DEPARTMENT OF THE NAVY

HEADQUARTERS UNITED STATES MARINE CORPS

2 NAVY ANNEX

WASHINGTON, DC 20380-1775

IN 
REPLY REFER TO
107 0
JAM2A

MEMORANDUM FOR EXECUTIVE DIRECTOR,

RECORDS

'BOARD FOK CORRECTION 

OF NAVAL

SuI) j :

BOARD 

FOR CORRECTION OF NAVAL RECORDS (BCNR!  

‘I’*

APPLlC.ATICIN

Encl:

(1) 

Copy 

ol Summary Court--Martial

We are asked to provide an opinion on

Petitioner's request

1.
to reduce his 3 February 2000,
sentence of reduction,
restriction and forfeiture.
Petitioner's SCM record.

Summary  Court-Martial (SCM)

restriction and forfeiture,

to only

Enclosure (1) is a copy of:

2 . We  recommend that Pet
Our- analysis follows.

3.

Background

itioner's request  

f-or relief be denied.

a.

Pursuant to a pretrial agreement (PTA), on 3 February

paygrade  E-5, pleaded guilty to

the convening authority agreed to withdraw

  107,  and  134,  Uniform Code of
In exchange for Petitioner's pleading

2000 , Petitioner, a Sergeant,  
violations of Articles 92,
(UCMJ).
Military Justice  
guilty at SCM,
Petitioner's charges from a pending special court-martial and
refer them to a SCM.
The UCMJ violations were the result of
Petitioner's wrongful fraternization and adultery with a junior
Marine, a Lance Corporal  
paygrade E-3, and for making
two false official statements denying the same.
the 
the time of the offenses.

LCpl were in a working superior-subordinate relationship at

(LCpl),  

Petitioner and

b.

Petitioner's adjudged sentence included the maximum

punishment permitted at SCM for his paygrade:
restriction, reduction to pay grade E-4, and forfeiture of
thirds pay for 1 month ($1070.00).
clemency or suspension of the sentence.
Petitioner requested
the convening authority grant clemency and suspend the adjudged
reduction and forfeiture.
Petitioner's request for a suspended reduction, however, he did
reduce the adjudged forfeiture to $267.00 per month for 1 month
to allow Petitioner to support his three children. On

The convening authority denied

The SCM recommended against

60 days

 

two-

Subj:

BOARD FOR CORR

) APPLICATION
3
'*

20 January 2001,
) 
( K . C . M .
 
(2000 
ed.) ,
no legal err-or

in accordance with' Rules for Courts-Martial
1117, Manual for Courts-Martial (MCM), United States
 

a judge advocate reviewed Petitioner's SCM and

f ound

Analysis.

Petitioner claims that his SCM was biased

4 .
therefore presumably unfair,
SCM officer knew each other, were from the same unit, and
Petitloner  was reduced one paygrade,
by several witnesses that he should not be reduced.
Petitioner's claims are without merit.

because the convening authority and

 

cilld

  since

contrary to recommendations

a.

Relationship of convening authority and

  SCM  officer.
Neither~ the  MCM, nor the Manual of the Judge Advocate General,
require the convening authority and SCM officer to be strangers
to each other or even be from separate units.
authorities are
officer to serve as SCM,
from  within the convening authority's command.
SCMs;' therefore, the convening
25, UCMJ, criteria apply to  
authority essentially must "know" the officer who will serve as
SCM.

free to look outside their commands to find an

traditionally SCM officers are selected

While convening

Also, Article

b.

Composition of SCM.

The  function of the   SCM is "to
promptly adjudicate minor offenses under a simple procedure."
Selecting officers from within the command
R.C.M.
1301(b).
facilitates the
"promptly adjudicate" function of  
discussed above. Moreover,
convening order must simply,
court-martial and detail the summary court-martial."
504(d) (2).
officers as a SCM is limited only by the requirement that a SCM
be composed of one commissioned officer on active duty, and
unless otherwise prescribed by the Service Secretary, to be of
the same service as the accused.

A convening authority's discretion to appoint

"designate that it is a summary

R.C.M. 1301(a).

to facilitate this function, the SCM

R.C.M.

SCMs,

C .

Petitioner did not object to trial by SCM.

Petitioner

accepted SCM and pleaded guilty to all charged offenses pursuant

’ “When convening a court-martial, the convening authority shall detail as 
armed forces as
length of service, and judicial te

for the duty by reason of age

, in his opinion, are best qualified 

mperament.” Art.

 25(d)(2), UCMJ.

members thereof such 

members of the

, education, training, experience,

2

Subj:

BOARD FOR CORRE

) APPLICATION

from objecting to SCM

 

up011 

Enclosure 

rl the PTA. On

iln addition to other matters,

the SCM conducted a preliminary  

proceedinq  
that the
Petitioner 

the officer detailed to his SCM, nor did he

PTAs do not prevent an accused
1 

(l), Summary Court--Martial Officer's
At the  trial on 3 February 2000, the SCM asked

to a PTA.“
or pleading differ-ent than agreed
2 February 2000,
inform Petitioner.,
battalion commander detailed him as the SCM.
object to  
trial by SCM.
Summary, page 1.
Petitioner a second time whether he accepted SCM, and
any motions to make.
motions.
Enclosure 
Summary, page 2.
failed to do so.
unfair after he accepted trial by SCM with full knowledge that
his battalion commander appointed an officer from within the
battalion to serve as the SCM officer.
knew full well that he had the absolute right to object to trial
by SCM.
that if he did object,
charges to a Special Court-Martial.

Petitioner accepted SCM and made no
(l), Summary Court-Martial Officer's

Petitioner had two opportunities to object and
Petitioner cannot now claim that his SCM was

However, he accepted SCM as part of the PTA knowing

the convening authority could refer his

Additionally, Petitioner

t o

did not
oblect to

 

 

if he had

d.

Witness' desire for

limits on punishment.

Petitioner's

belief that his SCM was unfair because the SCM did not follow
the recommendations of various witnesses to not reduce
Petitioner is groundless.
the sentence to be adjudged is a matter within the sole
discretion of the court-martial, in this case, the SCM officer.
R.C.M. 1002.
to the SCM's discretion,
notion that the SCM failed to follow a witness'
or desire is absurd..

a claim of unfairness based on the

Subject to limitations of the MCM,

Therefore, since Petitioner's sentence was subject

recommendation

Conclusion.

5.
relief be denied.

Accordingly, we recommend that the requested

, Military Law Branch

Judge Advocate Division

’ Additionally, Petitioner was represented by a military lawyer certified 
Under the terms of the PTA, signed by Petitioner and 
w ith his defense counsel and the offer to plead guilty originated with hi

in accordance with Art. 27(b), 

his defense counsel, Petitioner certified that he was satisfied

UCMJ.

m and his counsel.

3