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NAVY | BCNR | CY2002 | 09726-02
Original file (09726-02.pdf) Auto-classification: Denied
DEPARTMENT OF  THE  NAVY 

BOARD  FOR  CORRECTION  OF  NAVAL  RECORDS 

2  N A V Y A N N E X  

WASHINGTON  D C   20370-5100 

BJG 
Docket No:  9726-02 
23 April 2003 

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  23 April 2003.  Your  allegations of error and 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.  In  addition, the Board  considered the advisory 
opinion  furnished by  Headquarters Marine Corps, dated  11 March 2003, a copy of  which  is 
attached. 

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.  In  this connection, the Board  substantially concurred with  the comments contained 
in  the advisory opinion.  The Board  did  not consider removing  your conviction by  a spaid 
court-martial from the record,  since the Board  has no  such authority.  However, your 
sentence was reviewed as a matter of  clemency, but  the Board  found  that it was appropriate 
and  should not be changed.  Accordingly,  your  application has been  denied.  The names and 
votes of  the members of  the panel will be furnished upon  request. 

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 PFETFFER 
Executive Director 

Enclosure 

Copy to: 
The Honorable Chris John 

T 

- 

.  - 

DEPARTMENT OF THE N A W  

HEADQUARTERS UNITED STATES MARINE CORPS 

2 NAW  ANNEX 

WASHINGTON, DC 20380-1775 

IN REPLY REFER TO: 
1070 
JAM4 
MAR  1 1  Zoo3 

MEMORANDUM FOR EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF NAVAL 

RECORDS 

Subj:  BOARD FOR CO 

PLICATION 

1.  We are asked to provide an opinion on Petitioner's request 
to remove from his Service Record Book  (SRB) and Official 
Military Personnel File (OMPF) all entries relating to his 19 
October 1993 special courts-martial conviction for carnal 
knowledge, in violation of Article 120, Uniform Code of Military 
Justice  (UCMJ) . 

2.  We recommend that Petitioner's request for relief be denied. 
Our analysis follows. 

3.  Background 

a.  On 19 October 1993, Petitioner was convicted, in 

accordance with his guilty plea, by special court-martial of 
carnal knowledge, in violation of Article 120, UCMJ.  The 
military judge adjudged the following sentence:  180 days 
confinement, forfeiture of $543.00 pay per month for 6 months, 
reduction to private  (paygrade E-l), and a bad conduct 
discharge. 

b.  On 20 March 1994, the Commanding Officer, 3d Battalion, 

1st Marines, approved the findings and ordered t:he  semk e n r e  
executed, except that he suspended that portion of the sentence 
adjudging a bad conduct discharge. 

c.  On 23 April 1999, Petitioner was released from active 
duty upon completion of required active service.  His service 
was characterized as Honorable. 

4.  Analysis.  petitioner requests removal of his special court- 
martial conviction in order to facilitate his civilian 
employment.  Petitioner claims that the records should be 
removed because he was allowed to continue to serve on active 
duty following his conviction, was Honorably discharged, and has 
since enlisted in the U.S. Army, Reserve.  petitioner's claims 
are without merit. 

Subj:  BOARD FOR CORRECTION OF NAVAL RECORDS (BCNR) APPLICATION 

a.  Petitioner does not claim factual innocence or any legal 
error in the findings or sentence of his special court-martial. 
Petitioner's appeal for equitable relief without demonstrated 
error or injustice is not cognizable by the Board. 

b.  Paragraph 4008, Marine Corps Individual Records 

Administration Manual  (IRAM), requires records of conviction by 
court-martial to be prepared and documented on page 13 of the 
SRB.  The suspension of the bad-conduct discharge and 
Petitioner's subsequent Honorable discharge obviously do not 
change the historical fact of Petitioner's conviction. 

c.  Adverse consequences result from criminal convictions by 

design. 

5.  Conclusion.  Accordingly, we recommend that Petitioner's 
requested relief be denied. 



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