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NAVY | BCNR | CY2005 | 04427-05
Original file (04427-05.rtf) Auto-classification: Approved
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
         2 NAVY ANNEX    
WASHINGTON DC 20370-5 100

         CRS
         Docket No: 4427-05
         12 October 2006

From:    Chairman, Board for Correction of Naval Records
To:      Secretary of the Navy
Subj:    REVIEW OF NAVAL RECORD OF

Ref:     (a) Title 10 U.S.C. 1552
End:     (1) Case Summary
          (2) Subject’s naval record

 1.       Pursuant to the provisions of reference (a), Petitioner, an enlisted member of the Marine Corps, applied to this Board requesting that his naval record be corrected by removing the nonjudicial punishment (NJP) of 19 April 2002, the associated fitness report, and all documentation pertaining to the ensuing relief for cause.

2.       The Board, consisting of Messrs. Caron, Morgan, and McBride, reviewed Petitioner’s allegations of error and injustice on 13 September 2006 and, pursuant to its regulations, determined that the corrective action indicated below should be taken on the available 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 was filed in a timely manner.
c.       On 4 March 2000 Petitioner reenlisted in the Marine Corps having completed more than 12 years of active service. Subsequently, he was promoted to his current rank of gunnery sergeant (E-7). The record reflects overall excellent performance and Petitioner has received two Navy-Marine Corps Achievement Medals.
d.       On 8 April 2002 two investigations were completed on the recruitment of two prospective recruits. One of the investigations found that in March 2002, a recruit was provided laxatives and coached in how to use them in order to lose weight. Petitioner denied giving the recruit any type Of laxative. The second investigation found that Petitioner prevented complete disclosure of the medical history of one of the prospective recruits to the examining physician at the Military Entrance Processing Station. Specifically, the medical history statement completed in connection with the enlistment physical examination did not reflect the recruit’s history of left inquinal herniorrhophy and psoriasis. Both investigations substantiated the charges against Petitioner, and both punitive and administrative actions were recommended.
e.       On 9 April 2002 the Commanding Officer (CO) of the 4 th Marine Corps District concurred with the results of both investigations and stated as follows in two separate endorsement letters:
The CO Recruiting Station Raleigh is directed to conduct NJP proceedings on (Petitioner) Upon completion of NJP, process aforementioned Marines for Relief for Cause due to Malpractice.
Both letters were addressed to “files”, with a copy to the CO, Marine Corps Recruiting Station, Raleigh, North Carolina.

 f.       Consequently, NJP action was initiated and Petitioner elected to accept NJP in lieu of demanding trial by court-martial. On 19 April 2002 the CO of Recruiting Station Raleigh, NC imposed NJP upon Petitioner for violating recruiting regulations by giving a prospective recruit laxatives in order for him to lose weight, and fraudulently enlisting of a second recruit when he was not medically qualified. The punishment imposed consisted of forfeitures of $1054 per month for two months and a letter of reprimand.
g.       In Petitioner’s 27 April 2002 appeal of the NJP, he asserted his innocence to both charges. In his endorsement dated 13 May 2002 the CO of the recruiting station stated that Petitioner showed a blatant disregard for orders and Marine Corps values. On 20 June 2002 Petitioner’s appeal was denied.
h.       Petitioner received an adverse fitness report for the period 2 October 2001 to 22 April 2002 which that stated he had placed the health and welfare of two recruits at risk by processing them for enlistment in the Marine Corps. Further, the report opined that Petitioner did not possess the moral strength to successfully overcome the associated stresses of independent duty while in pursuit of mission accomplishment.
i.       On 24 June 2002, the CO of the recruiting station recommended Petitioner’s relief for cause. Among the enclosures to the CO’s letter were the two investigation reports. In Petitioner’s rebuttal to this action, he once again denied guilt. The relief for cause recommendation was favorably endorsed by
 the CO of the Fourth Marine Corps District, the Commanding General (CG) of the Eastern Recruiting Region, and the Commanding General of the Marine Corps Recruiting Command. On 14 October
2002, relief for cause was directed by Headquarters Marine Corps
(HQMC).

 j.       In an attachment to his application, Petitioner’s counsel states that the NJP, fitness report, and the relief for cause package should be removed from the record. He argues that both letters of 9 April 2002 show unlawful command influence in that the CO, 4 th Marine Corps District directed a subordinate authority, the CO of the recruiting station in Raleigh, to impose NJP on Petitioner. He further points out the provisions in the Manual for Courts-Martial (MCM) which state that a superior authority cannot direct a subordinate authority to impose punishment in a particular case. Counsel also argues that giving a laxative to a potential recruit was not specifically prohibited by the applicable regulation in effect at the time of Petitioner’s alleged misconduct. Furthermore, the second offense should also be removed since there is no evidence to substantiate the uncorroborated allegation made by the recruit’s mother that she provided the correct information but was ignored by Petitioner. Finally, since the adverse fitness report and relief for cause were based on the unlawfully imposed NJP, they should also be removed from the record.
k.       An advisory opinion from the Performance Evaluation Review Board (PERB) at HQMC, dated 6 June 2005, recommends that no relief be granted concerning the adverse fitness report. PERB takes the position that Petitioner received NJP and was relieved for cause due to malpractice as a recruiter. As to the 9 April 2002 letters that state that the CO of the recruiting station “is directed to conduct NJP,” PERB states that even though the reviewing authority “used a poor choice of words . . . the language was not intended to be directive, but merely concurrence in what was already recommended by the reporting senior.” PERB also notes that the letter was addressed to “file” and not to the CO of the recruitin~~ station, and the letters were not personally signed by the CQ, 4 Marine Corps Recruiting District. Therefore, it concludes there was no unlawful command influence in this case because the “commander . . . was free to make an independent decision regarding imposition of NJP . .
1.       An opinion from the Military Law Branch (JAM) of HQMC, dated 14 July 2005, also recommends that the NJP not be removed from Petitioner’s record. The JAM states that Marine Corps regulations prohibited recruiters from providing laxatives to prospective recruits. Concerning the second charge, JAM asserts that the CO simply believed the recruit’s mother, and not Petitioner’s denial of guilt. As for the contention of unlawful command influence, JAM echoes the finding of PERB to the effect that the language used in both 9 April 2002 letters was not addressed to the subordinate commander but to “tile,” with a copy to Petitioner’s CO, and both letters were signed “by direction.” Accordingly, “there is no evidence whatsoever that (Petitioner’s CO) was actually directed by any superior officer to conduct the
 NJP.” JAM also points out that Petitioner voluntarily accepted
NJP.

 m.       In rebuttal to both opinions, counsel argues that nothing in Marine Corps regulations prohibited a recruiter from giving laxatives to recruits in March 2002. He goes on to state that despite the contents of the two advisory opinions, it is clear that the 9 April 2002 letters show unlawful command influence. He once again requested that the NJP, fitness report and relief for cause be removed from his client’s record.
n.       At the time Petitioner allegedly provided laxatives to the prospective recruit, Marine Corps Order (MCO) llOO.72B provided, in part, that with certain exceptions not applicable to this case, “correction of physical defects is strictly the responsibility of the applicant (for enlistment) .“ Recruiters were specifically prohibited from “suggesting cures, remedies or medical procedures.” A memorandum of 1 March 2002 (“Frost Call”) noted that use of diuretics by a prospective recruit is “temporarily disqualifying,” and stated that “recruiters will not direct or advise any applicant . . . to use any type of diuretic for any purpose.” MCO 1100.72C, the successor directive, directs recruiters to refrain from “any involvement in providing, suggesting, advising or instructing any applicant to use diuretics, (or) laxatives . . . for the purpose of expeditiously losing weight to meet . . . standards.”
o.       Paragraph ld(2) of Part V of the MCM provides as follows:
A commander who is considering a case for (NJP) disposition will exercise personal discretion in evaluating each case, both as to whether NJP is appropriate, and, if so, as to the nature and amount of punishment appropriate. No superior may direct that a subordinate authority impose NJP . .
CONCLUSION:

Upon review and consideration of all the evidence of record, the Board concludes that partial relief is warranted, specifically, removal of the NJP and the adverse fitness report.

The Board initially concludes that the evidence was sufficient to prove Petitioner’s guilt of the charges for which he received NJP. The Board believes the applicable provisions of MCQ 1100.72B prohibited him from giving laxatives to an applicant for enlistment. Clearly, if a recruiter gives an overweight applicant a laxative, the CO could reasonably conclude that the recruiter has assumed at least partial responsibility for the recruit’s physical condition, and suggested the laxative as a remedy for his overweight condition. Both actions were prohibited by the governing directive. The Board also concurs with the advisory opinion from JAM to the effect that the CO could believe evidence other than Petitioner’s protestation of innocence in concluding that he was guilty of concealing the medical problems of the other recruit.


Nevertheless, the NJP should be removed from the record because the Board concludes that counsel’s contention of command influence has merit. There is a clear prohibition in the MCM against a superior directing that a subordinate impose NJP. In this case, the CO of Recruiting Station, Raleigh, NC, was directed by the CO of the 4 th Marine Corps District, in the letters of 9 April 2002, to conduct NJP on Petitioner and process him for detachment for cause after completion of NJP. The clear implication of these letters was that NJP was to be imposed on Petitioner and then detachment for cause action was to be initiated. Even if the CO of the Marine Corps District did not intend that his letters be so interpreted, a reasonable CO receiving such letters would most probably conclude that he had received his marching orders and act accordingly. The Board cannot accept the rationale of PERB and JAM for rejecting this contention of error. The fact that the letters were signed “by direction” of the CO of the Marine Corps District and not by the CO personally makes no difference to the Board, since a by direction letter is presumed to reflect the wishes of the CO. Additionally, while it is true that both letters were addressed to “file,” it is also true that copies were sent to the CO of the recruiting station. Those letters are dated nearly two weeks prior to imposition of NJP, sufficient time to be received by the subordinate commander.

Although the NJP and the adverse fitness report should be removed from the record, the Board comes to a different conclusion concerning the relief for cause. In this regard, the letters from the district CO of 9 April 2002 directed two actions on the part of the recruiting station CO; that NJP be conducted and that Petitioner be processed for relief for cause. While the recruiting station CO could and did impose NJP, he could not relieve Petitioner for cause but was empowered only to recommend such action to HQMC. In his letter of 24 June 2002, the CO did so on the basis of the NJP. However, he also forwarded the underlying basis for the disciplinary actions, the investigative reports. These reports would have been reviewed by the endorsers and the decision maker. Two of those endorsers, the CG’s of the Eastern Recruiting Region and the Marine Corps Recruiting Command, were not privy to the district commander’s letters of 9 April 2002 and, even if they were, would not have been bound by them. Accordingly, the Board does not believe the relief for cause should be removed from the record.

RECOMMENDATION:

 a.       That Petitioner’s naval record be corrected by removing all references to the NJP of 19 April 2002, including but not limited to the Offense and Punishments (page 12) entry.

 b. That the record be further corrected by removing the fitness report for the period 2 October 2001 to 22 April 2002. In place of the removed evaluation, a memorandum should be inserted that identifies the fitness report and states that it has been properly removed by the Secretary of the Navy, may not be made available to selection boards and other reviewing authorities, and prohibits such authorities from speculating or drawing any inferences as to the nature of the evaluation.

c.       That no further relief be granted.

 d.       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.

 e. 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.

ROBERT D. ZSALMAN        ALAN E. GOLDSMITH
Recorder         Acting Recorder

 5. The foregoing action of the Board is submitted for your review and action.
W. DEAN PFEIFFER



 Reviewed and approved:

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