DEPARTMENT OF THE NAVY
                                                BOARD FOR CORRECTION OF
NAVAL RECORDS
                             2 NAVY ANNEX

 WASHINGTON DC 20370-5100








                                                        AEG

                                 Docket No. 9239-02
                                                                       3
                                 March 2003


      From: Chairman, Board for Correction of Naval Records
      To:   Secretary of the Navy

      Subj: REVIEW OF NAVAL RECORD OF

      Ref:  (a) 10 U.S.C. 1552

      End:  (1) Case Summary
            (2)  Subject’s Naval Record

      1.    Pursuant to the provisions of reference (a), Petitioner, a
      former enlisted member of the Marine Corps applied to this Board
      requesting that his naval record be corrected by removing a
      nonjudicial punishment (NJP) and changing his reenlistment code.

      2.    The Board, consisting of Messrs. Zsalman, Tew and Dunne,
      reviewed Petitioner’s allegations of error and injustice on 26
      February 2003 and, pursuant to its regulations, determined that the
      corrective action indicated below should be taken on the evidence of
      record. Documentary material considered by the Board consisted of the
      enclosures, naval records and applicable statutes, 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:

           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.    After about six months in the Delayed Entry Program of the
      Marine Corps Reserve, Petitioner enlisted in the Marine Corps on 10
      February 1993 for four years. He then served in an exemplary manner,
      receiving excellent conduct and proficiency marks, advancing in rank
      to corporal (CPL; E-4), and earning a Navy Achievement Medal (NAM).

           d.    On 21 October 1996 Petitioner reenlisted for a period of
      three years, thus incurring an active service obligation until 20
      October 1999. Petitioner generally continued his excellent service,
      advancing in rank to sergeant (SGT; E-5) and earning another NAM.
      During this period, Petitioner was placed on the weight control
      program, but was removed from the program after losing weight.

      e.    The record contains a Certificate of Discharge or Release From
Active Duty (DD Form 214) that shows he was discharged upon the expiration
of his enlistment on 20 October 1999. However, the DD Form 214 apparently
was prepared in error since other documentation in the record clearly shows
that he was not discharged but retained on active duty past the expiration
of his enlistment.

      f.    On 6 January 2000 Petitioner was placed on report for the
following violations of Article 92 of the Uniform Code of Military Justice
(UCMJ):

    In that (Petitioner) . . . did . . . on or about 25 September 1999,
    violate a lawful general order, to wit:
    SECNAVINST 5510.30A, dated 10 March 1999, by wrongfully providing false
    documentation of security clearance regarding (CPL) Leonardo (P),
    (USMC).

    In that (Petitioner) . . . who knew or should have known of his duties .
    . . on or about 25 September 1999, was derelict in the performance of
    his duties as administration clerk in that he willfully failed to
    provide accurate information from the Marine Corps Total Force System in
    order to obtain a security clearance for (CPL P), as it was his duty to
    do.

On 11 January 2000 Petitioner elected not to demand trial by court-martial,
and instead accepted nonjudicial punishment (NJP) for the foregoing
offenses. On the same day, the commanding officer imposed NJP consisting of
a reduction in rank from SGT to CPL. Petitioner elected not to appeal the
punishment.

      g.    A second DD Form 214 reflects that Petitioner was honorably
discharged on 11 January 2000 by reason of “end of active service,” and
assigned an RE-4 reenlistment code. The DD Form 214 reflects continuous
service since his reenlistment on 21 October 1996. Accordingly, it appears
that as of the date of discharge, Petitioner had a total of about 7 years
and 11 months of active service.

      h.    In his application to the Board, Petitioner contends that he was
improperly extended on active duty for the purpose of imposing NJP, and
unfair to assign an RE-4 reenlistment code given his overall record of
service. In support of his requests, he has attached a letter from his
former commanding officer (CO), who states that Petitioner’s NJP was
“unjust and disproportionate to the offense once the extenuating
circumstances are considered.” In addition, by letter to Petitioner of 21
October 2002, the Performance Evaluation Review Branch of the Personnel
Management Division (Code MMER), Headquarters Marine Corps (HQMC) has
stated that he should have been assigned a reenlistment code














                                      2
of RE-lA instead of RE-4, and that an appropriate correction would be made
after Petitioner’s case with the Board is finalized.

      i.    In an advisory opinion of 17 September 2002, the Military Law
Branch of the Judge Advocate Division (Code JAM), HQMC, cites Rule for
Courts-Martial 202(c) (1) for the proposition that court-martial
jurisdiction attaches when action with a view to trial is taken and
continues for purposes of trial, sentence and punishment, notwithstanding
the expiration of a term of service. The opinion then goes on to state as
follows:

    The information provided shows that Petitioner was placed on legal hold
    and was the subject of a military criminal investigation, prior to his
    discharge date. Our courts have held that such investigatory steps can
    be sufficient action taken “with a view to trial” to effect the
    attachment of court-martial jurisdiction. (citations omitted)

    The apparent attachment of court-martial jurisdiction in this case does
    not, however, end our inquiry . . . The question presented here is
    whether such jurisdiction may continue to operate beyond a service
    member’s discharge date for the purpose of imposing NJP, an
    administrative process . . . (emphasis in text)

    There is no provision in the UCMJ or service regulations that authorize
    involuntary retention of an enlisted Marine beyond (the expiration of
    his active service obligation) for the purpose of imposing NJP .

Accordingly, JAM recommends that the NJP be removed from Petitioner’s
record.

      j     In the case of United States v. Self the United States Court of
Military Appeals considered a situation in which continuing jurisdiction
was premised on an interview of the accused by law enforcement authorities,
pursuant to an ongoing investigation, and advised that he was suspected of
committing offenses. However, no other action “with a view to trial” was
taken prior to the expiration of his enlistment. In resolving the issue
adversely to the accused, the court stated, in part, as follows:

    We turn . . . to paragraph lid of the Manual (for Courts-Martial [MCMI,
    1969)2 to determine if military jurisdiction had attached and therefore
    continued—-whether or not a formal extension of the tour of active duty
    was accomplished . . . (W)e are mindful . . . that . . . an

1 13 M.J. 132 (CMA 1982).
2 This provision of the 1969 MCM is the predecessor to the current RCM
202 (c) (1)













                                      3
    investigation by an agency . . . is not always conducted with a view to
    prosecution, and even when the investigation concerns a crime, it may
    not be focused on a particular suspect. However, when a criminal
    investigation reaches the point where the guilt of a particular suspect
    seems particularly clear and it is highly likely that he will be
    prosecuted, we believe that investigative actions can fulfill the
    requirements of paragraph lid of the Manual even though no formal
    charges have been preferred

    Any acts of military officials which authoritatively presage a court-
    martial, when viewed in the light of surrounding circumstances, are
    surely sufficient under paragraph lid . . . to authorize retention on
    active duty for purposes of trial. Even if a trial by court-martial does
    not eventuate for one reason or another, clairvoyant positiveness has
    never been required.

Later cases, involving similar facts, are in accord.4

CONCLUSION:

Upon review and consideration of all the evidence of record, the Board
concludes that corrective action is warranted. In this regard, the Board
initially notes that NMER has concluded that Petitioner should not have
been assigned an RE-4 reenlistment code, and that code should be changed to
RE-lA. The Board concurs. It also appears to the Board that since
Petitioner was not actually separated upon the expiration of his last
enlistment on 20 October 1999, the DD Form 214 of that date should be
removed. The record will then reflect that Petitioner continued to serve
without interruption until his discharge on ii January
2000.

Turning to the NJP, the Board agrees with the conclusion of JAM that it
should be removed from Petitioner’s records since the record does not
reflect that his enlistment was extended “with a view to trial.” In this
regard, there is no indication that at the time of the involuntary
extension, the investigation had proceeded to a point at which Petitioner’s
guilt was clear. Further, given the comments of the former CO. it appears
that once Petitioner was deemed guilty, the offense was deemed minor and
subject to resolution at NJP. At no point, let alone at the time of his
involuntary extension, does it seem that prosecution by court-martial was
likely.5 Therefore, the involuntary


Self, at 137-38.
  United States v. Benford, 27 M.J. 518, 520-21 (NMCMR 1988); United States
v. Lee, 43 M.J. 794, 797-98 (N.M.Ct.Crim.App. 1995)
It is useful to contrast the facts in this case with those in BCNR
#6853—01. In that case, an investigation was initiated nearly five months
before the individual’s involuntary extension and court-martial charges
were subsequently preferred, although they were later withdrawn in favor of
NJP action. The Board denied the petitioner’s request to remove the NJP,
relying, in part, on an advisory opinion from the Criminal Law Division of
the Judge Advocate











                                      4
extension of Petitioner’s enlistment was improper. Had this extension not
occurred, NJP could not have been imposed. Accordingly, that adverse action
should be removed from Petitioner’ s record.

RECONMENDATION:

      a.    That Petitioner’s naval record be corrected by removing the DD
Form 214 reflecting discharge on 20 October 1999.

      b.    That the record be further corrected by removing all references
to the NJP of 11 January 2000. This corrective action should include, but
not necessarily be limited to, removal of the following:

            1.   The Notification and Election of Rights of 11 January
           2000.

            2.   The page 12 entry which sets forth the two specifications
           of misconduct under UCMJ Article 92.

            3.   The completed Office Hours Guide.

            4.   The Unit Punishment Book of ii January 2000 and the
           attachment.

            5.   The Accused’s Notification of Appeal Rights of 11 January
           2000.

      c.    That the record be further corrected to show that Petitioner was
never reduced from SGT to CPL.

      d.    That the record be further corrected to show that on ii January
2000, Petitioner was assigned a reenlistment code of REIA instead of RE-4.

      e.    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.

      f.    That any material directed to be removed from Petitioner’s naval
record be returned to the Board, together with a copy of this Report of
Proceedings, for retention in a confidential file maintained for such
purpose, with no cross reference being made a part of Petitioner’s naval
record.

4. It is certified that a quorum was present at the Board’s review and
deliberations, and that the foregoing is a true and complete record of the
Board’s proceedings in the above entitled matter.





General to the effect that the record showed that “extension beyond the
Petitioner’s EAOS was proper because courts-martial (sic) was
contemplated.”





                                      5

ROBERT D. ZSALMAN                            ALAN E. GOLSMITH
Recorder                                     Acting Recorder

5. Pursuant to the delegation of authority set out in Section Se of the
Procedures for the Board for Correction of Naval Records (32 Code of
Federal Regulations, Section 723.6[e]), and having ensured compliance with
its provisions, it is hereby announced that the foregoing corrective
action, taken under the provisions of reference (a), has been approved by
the Board on behalf of the Secretary of the Navy.







                                                   W. DEAN PFIFFER
                                                   Executive Director



































                                      6
E.    GOLDSMITH
Acting Recorder