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NAVY | BCNR | CY2004 | 02895-04
Original file (02895-04.rtf) Auto-classification: Denied
                                             DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
                                             2 NAVY ANNEX
 WASHINGTON DC 20370-5100

         CRS
Docket No: 2895-04
11 August 2004



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 11 August 2004. 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 1 June 2004, a copy of which is attached.
After careful and conscientious consideration of the entire record, the Board found that the evidence submitted was insufficient t establish the existence of probable material error or injustice. In this connection, 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,





Enclosure


DEPARTMENT OF THE NAVY
HEADQUARTERS UNITED STATES MARINE CORPS
                                                      2 NAVY ANNEX
          WASHINGTON, DC 20380-1775       
                                                      IN REPLY REFER TO:
                            1070
                                                                                           JAM 7
                                                                                           JUN 01 2004

 MEMORANDUM FOR EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF NAVAL RECORDS
Subj:    BOARD FOR CORRECTION OF NAVAL RECORDS (BCNR) APPLICATION ‘CO
1.       We were tasked with providing an opinion regarding Petitioner’s request. Specifically, Petitioner requests that all entries related to the non-judicial punishment (NJP) he received on 11 July 2001 be removed from his Service Record Book (SRB) and Official Military Personnel File (OMPF)
2.       We recommend that Petitioner’s request for relief be denied. Our analysis follows.
3.       Background

         a.       On 11 July 2001, Petitioner received battalion level NJP for failure to obey an order in violation of Article 92, Uniform Code of Military Justice (UC M J) - Petitioner was awarded pay per month too I month. lila reiluction to COYpOYOI was SL1SpCI1JCA ror a oavs
4.       Analysis . Petitioner claims that the order he was given by his officer in charge (OIC) to bring in his off duty education grades was an unlawful order.
a.       Paragraph 14.c.(2) (a) (i), Manual for Courts-Martial (MCM) (2002 Edition), states that “[am order requiring the performance of a military duty or act may be inferred to be lawful and it is disobeyed at the peril of the subordinate.” In addition, paragraph 14.c. (2) (a) (iii) states, in part, that “the order must relate to military duty, which includes all activities reasonably necessary to accomplish a military mission, or safeguard or promote the morale, discipline, and usefulness of members of a command and directly connected with the maintenance of good order in the service.”













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

b.       The order issued to Petitioner was lawful. All orders are inferred to be lawful in the absence of evidence to the contrary. At Petitioner’s NJP hearing, there was no evidence presented to rebut this inference of lawfulness. That Petitioner felt his grades were a private matter does not rebut the inference that the order was lawful.
c.       More importantly, in order to receive tuition assistance, Petitioner was required to provide his grades to the tuition assistance office (a government entity) . Since Petitioner was receiving tuition assistance, he had an obligation to the government to provide sufficient evidence that he was maintaining acceptable grades. Petitioner’s command had an obligation to ensure Petitioner was not receiving funds improperly. This obligation on the part of the command, therefore, necessarily included the authority to require Petitioner to provide his grades to ensure he was maintaining the required academic standards. This authority puts the order from Petitioner’s OIC squarely under the requirement for an order to be related to military duty.

5.       Conclusion . Accordingly, we recommend that the requested relief be denied.


 Head, Military Law Branch
Judge Advocate Division








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