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NAVY | BCNR | CY2005 | 08275-05
Original file (08275-05.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
 WASHINGTON DC 20370-5100


                                                                                                   CRS
 Docket No: 8275-05
 23 February 2007








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 15 February 2007. 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 30 November 2005, 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. 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.





Enclosure
 I
DEPARTMENT OF THE NAVY
HEADQUARTERS UNITED STATES MARINE CORPS
3000 MARINE CORPS PENTAGON
WASHINGTON, DC 20350-3000

IN REPLY REFER TO:
 1070
 JAM

MEMORANDUM FOR EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF NAVAL RECORDS
Subj:    APPLICATION FOR CORRECTION IN THE CASE USMC
         Ref:     (a)      SECNAVINST 5420.193
                  (b)      PHONCON (JAM)
                           Student) of 1 5 Nov 05

End:     (1) MCTFS 3270 print outs
1.       You requested we p rovide an advisory opinion (hereinafter “Applicant”) application to request the removal of all entries related to his nonjudicial punishment (NJP), which occurred on or about 14 August 2001.
2.       In order to justify correction of a military or naval record, Applicant bears the burden to show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the alleged entry or omission in the record was in error or unjust. In support of his petition, Applicant provided a letter from a witness at the NJP proceeding stating that the NJP charges were dropped. The witness was an officer but was not Applicant’s platoon commander, reporting senior, reviewing officer, nor company commander at the time of the NJP.
3.       Per reference (a), an application for correction of a record must be filed within three years after discovery of the alleged error or injustice, unless the Board excuses the untimely filing in the interest of justice. Applicant filed his application on 5 October 2005, four years after his NJP. Applicant’s justification for delay is that he was deployed, however, he also notes, without further explanation, that the date of discovery of the alleged error was 1 September 2005. Timely applications are crucial to a proper determination of an allegation of error where, as here, the ability to confirm the existence of a record is necessary to provide a complete advisory opinion. In accordance with governing record disposition regulations, NJP records are maintained for at most three full calendar years: the year created plus two years. As







Subj:    APPLICATION FOR CORRECTION IN THE CASE OF USMC
a result, any record of Applicant’s NJP would have been destroyed a~ the end of 2004.

 4.       Notwithstanding the inability to confirm the existence of NJP records in this case, reference (b) confirms ou r contact with the Applicant’s f ormer Company Commander at the time of the disputed NJP. While the former Company Commander could n o t recall Applicant’s case, he also could not recall ever dismissing or otherwise dropping NJP charges brought before him. Attempts to contact Applicant’s reporting senior at the time of the NJP were unsuccessful as that officer separated from the Marine Corps. Finally, Applicant’s fitness report for the period covering the NJP does not reflect an adverse report, however, it also does not contain comments by the reviewing officer. As a result, we are left with incomplete information to make a proper advisory opinion.
5.       We recommend the Board deny Applicant’s request until further information is obtained. Specifically, we recommend Applicant provide the Board further information on how and when he discovered the alleged error to his record, and also the reason for the delay in petitioning the Board. Additionally, we believe a letter from the Company Commander validating Applicant’s allegation is appropriate giving the competing information before the Board at this time. Applicant is in the best position to refresh that officer’s memory. Absent this additional information we do not believe it otherwise satisfactorily appears that the alleged entry or omission in the record was in error or unjust.

6.       Please contact the Military Law Branch at (703) 614-4250, if you require additional information.
Military Law Branch
 Judge Advocate Division







2

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