DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORD

S

2 NAVY ANNE

X

WASHINGTON DC 20370-510

0 TRG

Docket No: 8394-01
11 September 2002

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 session, considered your
application on 10 September 2002.
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
In addition, the Board considered the advisory
and policies.
opinion furnished by Headquarters Marine Corps, dated 9 April
2002, a copy of which is enclosed.

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

DEPARTMENT OF THE NAVY
HEADQUARTERS UNITED STATES MARINE CORPS

2 

NAVY  ANNEX

WASHINGTON, DC 20380-1775

IN  REPLY REFER TO
1070
JAM2A

MEMORANDUM FOR EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF

NAVAL RECORDS

Subj:

BOARD FOR

  C ORR EC TION 

0~ NAVAL

 

RECORDS 

(BCNR) APPLICATIO

I

N

Encl:

(1) Copy of Preliminary Investigation
(2) E-mail of
Company B,

Marine Security

---

(3) Excerpts from Co0

 

P5OOO.lD  and  

PlO50.1F

Battalion
BnO 

perations Officer,

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

1.
to restore his rank to Corporal/paygrade E-4, with the same date
of rank that he had prior to his nonjudicial punishment (NJP) on
9 February   2001.
Enclosures (1) and (2) are copies of the
preliminary inquiry and excerpts of applicable company and
battalion orders

on vehicle ownership,   respectively.

2.
We recommend
analysis follows

3.

Background

that the requested relief be denied.

Our

a.

Petitioner served as an administration clerk with

from 14 April   2000 to 2 March 2001.

Marine Security Guard (MSG) Battalion, American

Company B,
Embassy, Nicosia, Cyprus,
During this tour,'
staff noncommissi
was not to buy a
Baker overheard
Additionally, at several individual and group counseling
sessions,
authorized to buy an automobile.

GySgt Braddy informed Petitioner that he was not

Petitioner's
order that he
-and Sergeant

b.

Company B policy prohibited clerks from owning, buying,

or shipping a vehicle.

renting,
leased an automobile.
Order 
"Renting/Leasing of Motor Vehicles.
BnO 

P5000.1D of 30 July 1996,  

1050.3F of 24 May 1994,

On 18 January 2001, Petitioner

The company policy supplemented Company

para. 1005, which stated,

Discussed in  

BnO 

1050.3_."1

left to company commanders

\

' The Company Order was updated on 25 May 2001,
on renting and leasing vehicles found in 
BnO 

and 
1050.3F.

Aow incorporates language

See enclosure 

(3).

Subj:

BOARD  FOR CORR
IN THE CASE 0
507 02 8658 U

EC T IO N 

0~ 

NAVAL 

RECORDS

(BCNR) APPL

IC AT IO N

discretion the decision to permit Marines to buy, rent, or lease
vehicles.

C .

On 9 February 2001,

Petitioner accepted NJP for

violating Article 92,
Uniform Code of Military Justice (UCMJ),
for willfully disobeying GySgt Braddy's order not to purchase an
automobile.
reduction to lance  
$250.00 pay per month for 2 months,
Forfeiture of pay was suspended for 1 month.

His commanding officer (Lieutenant Colonel) awarded
paygrade  E-3, forfeiture of

corporal(LCPL),  

and restriction for 14 days.

d.

Petitioner appealed to his battalion commander

requesting that his grade be restored.
battalion commander denied Petitioner's appeal.
commander stated in his denial that the punishment Petitioner
received was consistent with punishments imposed on others for
similar offenses.

On 21 February 2001, the
The battalion

Analysis.

Petitioner 

c>aims his punishment was unjust

4.
because he was never ordered not to buy a vehicle; even if he
was given such an order,
did not buy the car, rather he leased it; and finally, even if
he was in the wrong,
Petitioner believes his offense did not
warrant reduction to  
LCpl and removal from   MSG battalion.
Petitioner's arguments are without merit.

he did not violate the order since he

a.

Lawfulness of  

order.2

An order to perform a military

duty or act is presumed to be lawful,
such an order at his own
para. 
(MCM), Part IV,  
includes all activities reasonably necessary to accomplish a
military mission,
discipline,

or safeguard or promote the morale,

14c(2)(a) (i), (2000 ed.).

and usefulness of members of a command and directly

Manual for Courts-Martial

peril.3

and a subordinate disobeys

Military duty

 

we point out that under long-standing

in order to obtain relief on appeal, a service member convicted

2 As stated more fully below, and realizing that Petitioner was subject to NJP
and not tried by a court-martial,
military law, an accused has the burden at a court-martial to establish that
an order given to him by competent authority was not a lawful order.
Additionally,
of violating a lawful order has the burden of proving that the order was not
a lawful order.
issue was not a lawful order.
that establish the 
purchase a vehicle.
3 Additionally,
the burden is on the individual challenging the lawfulness of
an order to establish illegality, unless the order is "palpably illegal on
its face.“
2001).

Petitioner does not provide any evidence that the order at

lawful=ness of GySgt Braddy's order to Petitioner not to

See United States v. Micheal G. New, 55 M.J. 95, 108

Nevertheless, we will herein state the grounds

(CAAF

.

2

Subj:

BOARD FOR CORRECTION OF NAVAL RECORDS

 

(BCNR) APPLICATION

.

para. 

14c(2) 

(a)(iii).

connected with'the maintenance of good order in the service."
MCM, Part IV,  
Conversation with MSG
personnel reveals that the military purpose of the order is to
safeguard the usefulness of MSG Marines serving in Nicosia,
Cyprus.
Conversation with MSG personnel also reveals that
driving in Cyprus is very dangerous and the cost of car
insurance is exorbitant.
Preventing clerks from purchasing
vehicles serves to safeguard the usefulness of MSG personnel by
keeping them off the road as the driver of their own private
vehicles.
Preventing clerks from purchasing vehicles also
serves to maintain the usefulness of military members of the
command by helping to prevent the clerks from financially
overextending themselves as the ban on car purchases obviates
the necessity of purchasing the exorbitant insurance.
more broadly stated,
vehicles of Marines on embassy duty protects both the individual
and the United States from potential negative consequences
associated with use and ownership of vehicles.
order to Petitioner that
supported the company commander's policy prohibiting clerks
owning or renting vehicles while in Nicosia,
Hours Summary, page 1.
regulate vehicle ownership and control in a foreign country is
directly connected  
Petitioner,
obeyl-_"awful  order.

wi_th the maintenance of good order.

he'.was not to buy a vehicle directly

Thus,
limiting ownership and control of personal

a corporal at the time of the offense, had a duty to

Office
a commander's decision to

Cyprus.

Furthermore,

 

GySgt Braddy's

b.

Petitioner's knowledge that he could not buy a car.
Petitioner's claim that he was never told he could not buy a
vehicle is not supported by the evidence.*

Additional1
hear the same order,
occasions that he was not allowed to buy a vehicle.
attempts to bolster his claim based unfounded statement that no
written orders existed on the topic of buying or renting a
vehicle.

Enclosure (2) is Company B,

Operations Officer's

Petitioner

At the NJP hearing,

ormed the company
give Petitioner the
ated that not only did he
etitioner on several

4 Regarding Petitioner's truthfulness
December 20
noteworthy.
Petitioner

heet (enclosure

wrong he replies,

*comments  on a 31
osure (1)) are

"alters the truth quite a bit," and when

"he didn't know" which according

loner an

were involved.

3

Subj:

BOARD FOR CORRECTION OF NAVAL RECORDS
IN THE CASE 0

 

(BCNR) APPLICATION

synopsis of the restrictions governing buying or renting
vehicles while attached by Company B.
Petitioner's claim,
orders did exist to regulate his ability to purchase or rent a
vehicle while attached to Company B.

enclosure  (3) clearly shows that written

Also, contrary to

C .

he did not

particularly

Buying v. leasing.

Moreover,
 
"I leased the car"

for the preliminary inquiry.
etitioner knew full well that there was

Petitioner claims that since he
leased a vehicle,
order
violate
prohibiting him from buying a
 
vehicl
ailed to
raise this issue at the NJP proceeding.
noteworthy is the absence of Petitioner's
defense in his three and a half page handwritten statement he
provided to
(10)  to enc
no real difference between
the purpose of complying with
to the company commander's question as to why he didn't ask
anyone or tell anyone when he bought the car, Petitioner
responded,
from anyone to buy a car." 'Office Hours Summary, page 2.
Contrary to this statement, enclosures
that Petitioner did need permission to buy a car.
Petitioner purchased or leased the vehicle has no impact on the
lawfulness of the order given or the legality of the NJP
hearing.6

mah and I don't need to ask permission

(2) and (3) make clear

"I am a grown  

ing" a vehicle for
order.

Whether

"b

Enclosure

In response

d.

Reduction in rank.

Petitioner claims that the

punishment he received did not fit the offense.
offers no evidence to support his claim, however, we believe the
record fully supports the punishment awarded.
First,
Petitioner's punishment was
was authorized to
punishment, if any, to award,
considers the nature of the offense,
servicemember,

the needs of good order and discipline, and the

far less than the company commander
Second, before deciding what

a company commander routinely

the record of the

impose.7

Petitioner

 

Moreover, Petitioner accepted NJP after consulting a

Office Hours Accused‘s Notification and Election of Rights, page 2.

6As supported by the NJP hearing record, Petitioner accepted NJP with full
knowledge that he had the absolute right to refuse NJP and instead demand
trial by court-martial.
lawyer.
He neither raised this particular issue at his NJP nor in his NJP appeal.
Petitioner believed he did not violate
to refuse NJP and ask for a court-martial.
7 The maximum punishment Petitioner could have received includes: reduction to
LCpl/paygrade  E-3, forfeiture of 
for 60 days. MCM, Part V, ,para. 5, (2000 ed.)

l/2 pay per month for 2 months, restriction

order his recourse was

He did not.

If

4

Subj:

BOARD FOR CORR

PPLICATION

Finally,

effect on the servicemember and his record.'
notwithstanding the fact that the company commander was
conducting NJP on a noncommissioned officer, he awarded less
than the maximum punishment and on his own volition suspended
This is significant considering
all imposed forfeitures.
Petitioner had a track record of past misconduct that the
company commander likely took into consideration before imposing
Petitioner's punishment.'
commander,
appeal to restore his rank citing,
was consistent with past instances of similar

as the NJP appeal authority, denied Petitioner's

Petitioner's battalion

Finally,

in part,

that the punishment
 

misconduct.l'

Conclusion.

5.
Petitioner's request for relief be denied.

For the reasons noted, we  

recommend  that

Head, Military
Judge Advocate Division

Law Branch

para. l(d)\(l).

' MCM, Part V, 
’ Petitioner's service record book contains two 
counseling entries.
lo Petitioner's battalion commander found that his claims that he was lied to
and that there was written order on buying a car were "not supported in any
whatsoever."

Final Action on Appeal letter of 21 February 2001.

NJP's and three derogatory