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NAVY | BCNR | CY2005 | 08989-05
Original file (08989-05.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100



 SRB
 Docket No. 8989-05
12 Oct 06



This is in reference to your application for correction of your naval record pursuant to the provisions of 1OUSC 1552.
A three—member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 11 October 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 opinions furnished by HQMC memorandum 1070 JAM7 of 20 December 2005, and the Defense Finance and Accounting Service (DFAS), letter of 5 April 2006, copies of which are 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.


Sincerely,
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


MEMORANDUM FOR EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF NAVAL RECORDS
          Subj: BOARD FOR CORRE CTION OF NAVAL RECORD (BCNR) APPLICATION IN
THE CASE OF USMC

1.       You requested an advisory opinion on Private (hereinafter “Applicant”) request for restoration of pay and allowances owed to him as a result of a dismissed court-martial.
2.       Opinion. Applicant s reduction and forfeitures were lawfully imposed pursuant to his court-martial conviction. The partial reversal of this conviction by appellate authorities is properly documented in Applicant’s record. We recommend that Applicant’s request for relief be denied, but forwarded to the Defense Finance and Accounting Service (DFAS) for further review. Our analysis follows.
3.       Background

a.       On 24 March 1997, Applicant was convicted at a General Court-Martial for violations of Article 112a (wrongful distribution) and Article 124 (maiming) of the Uniform Code of Military Justice (UCNJ). Applicant was awarded a dishonorable discharge, 7 years confinement, total forfeitures, and reduction to pay grade E—l.
b.       On 5 November 1999, the Navy-Marine Corps Court of Criminal Appeals (NNCCA) affirmed the finding of guilty of distribution of marijuana, but set aside the finding of guilty of maiming and the sentence. The NNCCA returned the case to the convening authority for a rehearing on the maiming charge and if deemed impracticable, the convening authority was permitted to dismiss that charge and order a rehearing on the sentence for distribution of marijuana only.
c.       On 19 April 2000, following a retrial convened by the Commanding General, Marine Corps Base, Camp Pendleton, California, Applicant was found guilty of the lesser included offense of Article 128 (Assault consummated by a battery), UCMJ.
Subj:    BOARD FOR CORRECTION OF NAVAL RECORDS (BCNR) APP LICAT ION CASE OF


c.       Both Rule for Courts-Martial 1208, Restoration, and paragraph 480902 of the Department of Defense Financial Management Regulation, provide guidance on restoration of monies in courts-martial when a new trial or rehearing is ordered as in Applicant’s case. If Applicant’s second court-martial resulted in a sentence of forfeitures less than his first, he would be entitled to the difference only if automatic forfeitures did not apply. However, as noted above, Article 58b, UCMJ, provides for automatic total forfeitures when a discharge and any confinement are adjudged by general courts—martial. This holds true whether the court-martial itself adjudged forfeitures.
d.       We do note that the Applicant has already been reimbursed $3880.16. If Applicant believes that he has not already received all additional monies he is entitled to receive, he must submit a detailed claim to the Defense Finance and Accounting Service (DFAS) for evaluation. His claim must include a complete copy of the record of trial from his court-martial as well as the order dismissing the charges or receiving a lower punishment. If Applicant does not already possess copies of these documents, he may request copies from the Navy- Marine Corps Appellate Review Activity (NAMARA) by writing to the following address:
e.       Applicant should be advised that any entitlement to back pay will be offset by income earned from other sources during the time he was on appellate leave. Accordingly, in his claim to DFAS, Applicant will be required to include copies of his W 2’s and any pay records for this time period. Applicant’s claim, and all supporting documentation should be sent to DFAS at the following address: If any problems arise obtaining these records, Applicant may a 150 contact NAMARA at
Any questions that the Applicant may have about filing a claim may be directed to the DFAS office at

f.       Consequently, Petitioner’s plea for clemency to the Board of Corrections for Naval Records should be ignored, as it is a matter reserved to DFAS.
5.       Conclusion . Accordingly, we recommend that Applicant’s request for relief be denied, but at least forwarded to the Defense Finance and Accounting Service (DFAS) for further review.
6.       Please contact the Military Law Branch at if you require additional information.



Lt Co l, U.S. Marine Corps
Head, Military Law Branch
Judge Advocate Division

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