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NAVY | BCNR | CY2005 | 08286-05
Original file (08286-05.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100


 LCC
 Docket No. 8286-05
8 Mar 06




This is in reference to your application for correction of your naval record pursuant to the provisions of 10 U SC 1552.
A three-member panel of the Board for correction of Naval Records, sitting in executive session, considered your application on 7 March 2006. 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 CMC memorandum 1070 JAN7, 27 January 2006, a copy of each is attached.
After careful and conscientious consideration of the entire record, a majority of 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 also 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.


                                                     
                                                               W. DEAN PFEIFFER
                                                               Executive Director
Enclosure





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



                  IN REPLY REFER TO:
                                              1070
                                                                                  JAM7

MEMORA N DUM FOR EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF NAVAL RECORDS
         Su bj:    APELICATION FOR CORRECTION IN THE CASE

Ref:     (a) SECNAVINST 5420.193

1.       You requested we provide an advisory opinion on~ (hereinafter “Applicant”) application to correct a wrongful reduction in rank.
2.       Opinion . For the reasons noted below, we recommend that the Board deny Applicant’s requested relief.
3.       Background

a.       Applicant enlisted in the Marine Corps on 23 January 1964. Applicant claims that he was supposed to be meritoriously promoted at the completion of recruit training. Instead this promotion was denied due to actions of his platoon sergeant.
b.       In support of his claim, Applicant’s letter recounts how his platoon sergeant promised to get his weapon inspection ready so Applicant could spend time with his family before graduation. However, after Applicant would not let his platoon sergeant date his 15—year old sister (“the platoon sweetheart”) , he ended up failing inspection and had his new stripe removed from his uniform in front of the entire platoon. Additionally, Applicant provides a letter from his sister. There is no evidence in Applicant’s record supporting whether he was in fact selected for meritorious promotion.
c.       While at his first duty station, Applicant received a summary court-martial on 28 August 1964 and two special courts-martial on 29 March 1965 and 6 January 1966.
4.       Discussion

a.       Applicant requests that “justice to be done” without identifying the specific action requested by the Board.
b.       The Board for Corrections of Naval Records (BCNR) was established as a means for a Board of members to review pertinent information in making a determination of relief through correction of military records. Since the alleged failure of Applicant to be meritoriously promoted was never actually part of his military record,

there is no basis for administrative correction of his record or any basis to right a wrong.
c.       The Board should reject the application because it is untimely. 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 23 September 2005, forty-one years after the alleged wrong. Moreover, applicant fails to provide any reason to excuse his untimely application. Timely applications are crucial to a proper determination of an allegation.
d.       In order to justify correction of a military or naval record, the 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. A promise by a drill instructor is not credible evidence that he was apparently supposed to be promoted.
e.       Finally, even assuming that the facts as related by Applicant are true, Applicant received three courts-martial in less than a 2-year period. These courts-martial remain part of his military service record and were not overturned or otherwise set aside and therefore should remain unchanged in his record. If the incident at boot camp did in fact occur, Applicant had amble opportunity to raise them as mitigating factors for the offenses he was ultimately found guilty.
6. Please contact the Military Law Branch at if you require additional information.


Military Law Branch
 Judge Advocate Division

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