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NAVY | BCNR | CY2006 | 00610-06
Original file (00610-06.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100


JRE
Docket No. 00610-06
19 January 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 19 January 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, it considered the advisor opinion furnished by the Commandant of the Marine Corps, dated 2 May 2006, 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. In addition, the Board was not persuaded that the punishments you received under Article 15, Uniform Code of Military Justice, were unjust or disproportionate to the offenses you committed, or that you did not commit the offenses in question. 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 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,



ROBERT D. ZSALMAN
Acting 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
 JAM3

MEMORANDUM FOR EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF NAVAL RECORDS
Subj:    APPLICATION FOR CORRECTION IN THE CASE OF

Ref:     (a) SECNAVINST 5420.193
page 11’s and page 12

 1.       You requested we provide an advisory opinion on Private First Class Fitch’s (hereinaft.er “Applicant”) application to upgrade his discharge rank from Private First Class to Corporal.
2.       Opinion . We recommend the Board deny relief. Applicant fails to provide substantial evidence of probable material error or injustice in support of his application.
3.       Background

a.       In 1995, Applicant was attached to the Heavy Marine Helicopter Squadron (HMH) 466, Marine Aircraft Group (MAG) 16, Marine Corps Air Station (MCAS), Tustin, California. While attached to HMH-466 Applicant received 3 separate nonjudicial punishments in a 4 month period for unauthorized absence.
b.       Applicant claims that due to a sleep disorder, specifically Obstructive Sleep Apnea, that he was unlawfully reduced in rank and now requests that his rank be changed from Private First Class to Corporal on his DD 214.
4.       Analysis

a.       First, we note that the Board should reject the application because it is untimely. In accordance with the reference, 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. The Applicant filed this application on 5 January 2006, over 8 years after his discharge on 15 May 1997.






Subj:    APPLICATION F OR CORRECTION IN THE CASE OF


The Applicant offers no justification for this untimely application for relief and he has failed to make any showing that the interests of justice warrant its untimely consideration.

 b.       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. Applicant has not provided any evidence to support his claim as to why he should be promoted to the rank of Corporal, and has not met the burden for relief.
c.       Applicant’s claim that he was not promoted due to a medical condition is erroneous. The only evidence produced by the Applicant to support his claim is a letter dated 6 June 1995, from his Division Chief stating he should not be promoted due to a pending medical problem. Per the enclosure, it should be noted that Applicant had other misconduct in his SRB that would have precluded his promotion.
5.       Conclusion . No corrective action is warranted in this case because Applicant fails to demonstrate by substantial evidence that his rank at the time of discharge was in error or an injustice.

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



 H ead, Military Law Branch budge Advocate Division By direction of the Commandant of the Marine Corps









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