DEPARTMENT OF THE  NAVY 

BOARD  FOR  CORRECTION  OF  NAVAL  RECORDS 

2   NAVY  ANNEX 

WASHINGTON  DC  20370-5100  TRG 

Docket No: 2760-03 
29 May 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 28 May 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, a copy of which 
is enclosed. 

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. 

You enlisted in the Marine Corps on 16 October 1995 at age 20.  A 
counseling entry, dated 17 March 1998, states that you were 
arrested on 18 October 1997 and on or about 5 March 1998 on 
domestic violence charges.  On 25 June 1998 and 7 June 1999, you 
were counseled concerning not being recommended for promotion to 
corporal because of pending civil charges for domestic violence, 
and then for being in a probationary status as a result of a 
civil conviction. 

On 22 January 1999, you received nonjudicial punishment for 
failure to comply with a military protective order.  The 
punishment imposed included a reduction in grade to private first 
class.  You were released from active duty on 15 October 1999 
with your service characterized as honorable.  At that time, you 
acknowledged that you were not recommended for reenlistment and 
would be assigned an RE-4 reenlistment code. 

In your application, you have submitted evidence that a 
California Court has ordered that your conviction be set aside 
and a plea of not guilty entered in your record, and that you 

will graduate from college in 2003.  You contend that since the 
civil conviction no longer exists, the reenlistment code should 
now be changed to RE-1A. 

Concerning the action to dismiss your conviction, the advisory 
opinion points out that the Federal Government is not bound by 
any ruling of a state court and since the conviction occurred it 
is rightfully considered in determining your qualifications for 
reenlistment.  The opinion also points out that the court order 
"does not relieve you of the obligations to disclose the 
conviction in response to any direct question contained in ay 
questionnaire or application for public office, for licensure by 
any state or local agency, or contracting with the California 
State Lottery."  The Board thus concluded that a record of two 
domestic violence incidents and an NJP for violating a protective 
order was sufficient to support the assignment of the Re-4 
reenlistment code.  Therefore, the Board substantially concurred 
with the comments contained in the advisory opinion. 

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 PFEIFFER 
Executive Director 

Enclosure 

DEPARTMENT OF THE NAVY 

H E A D Q U A R T E R S  U N I T E D  STATES  M A R I N E  C O R P S  

3280 R U S S E L L   R O A D  

Q U A N T I C O .   V I R G I N I A   22 134-5 103 

I N  REPLY REFER TO: 

1040 
MMER/RE 
,HAR 2 8 2003 

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF 

NAVAL RECORDS 

Sub j : 

BCNR APPLICATION IN THE CASE OF FORMER 

bU 

Encl : 

DD Form 149 of 16 Sep 2002 

1.  -emice 
been determined that his reenlistment code of RE-4 was correctly 
assigned.  The reenlistment code was assigned based on his 
overall record and means that he was not recommended for 
reenlistment at the time of separation. 

record has been reviewed and it has 

as honorably discharged on October 15, 1999 by 
ion of Required Active Service.  A review of the 

2. 
reas 
administrative portion of his service record indicates that he 
was counseled concerning being arrested and charged with domestic 
violence and assault, not being recommended for promotion, and 
not being recommended for reenlistment because of commission of a 
serious offense.  The disciplinary portion of the record shows 
that he received one nonjudicial punishment under the Uniform 
Code of Military Justice for failure to comply with a military 
protective order.  It is also noted that on October 15, 1999 

=g 

signed an official service record book entry 

assignment of the RE-4 reenlistment code. 

f111 f i 1 3  ~d 

Superior 
case was 

3.  We take note that pursuant to the 
Court of California, County of Orange, 
dismissed.  The court document indicate 
the conditions of probation for the entire period of probation or 
been discharged prior to termination of the period of probation, 
was not serving a sentence for any offense, on probation for any 
offense, or charged with the commission of any offense.  While 
the Superior Court of California may have dismissed the case, 
it must be stressed that the Federal Government is not bound by 
a State ruling.  The conviction occurred and is rightfully 
considered in continuing to d e t e r m i n e a l i f i -  
cations for reenlistment and the validity of the RE-4.  We 
specifically refer to the statement contained at the bottom of 
the Petition and Order Under P.C.1203.4/1203.4a.  To wit: "This 
order does not relieve you of the obligation to disclose the 
conviction in response to any direct question contained in any 
questionnaire or application for public office, for licensure by 
any state or local agency, or contracting with the California 
State Lottery." 

4.  After a review of all relevant information, this Headquarters 
concurs in the professional evaluation of - 
fications for reenlistment at the time of- 
code is correctly assigned it is not routinely changed or 
upgraded as a result of events that occur after separation or 
based merely on the passage of time. 

ali- 

a 

5.  The enclosure is returned for final action. 

Head, Performance Evaluation 
Review Branch 
Personnel Management Division 
By direction of the Commandant 
of the Marine Corps