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NAVY | BCNR | CY2006 | 04262-06
Original file (04262-06.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
                  CRS
                                                                                          Docket No: 4262-06
                                                                                          12 July 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 11 July 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 5 July 2006, a copy of which is attached, and your rebuttal.
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
E nclosure
DEPARTMENT OF THE NAVY
HEADQUARTERS UNITED STATES MAR1NE CORPS
3000 MARINE CORPS PENTAGON
                                                      WASHINGTON DC 2035O~30QO
                  
                                                                                         
                                                                                          1070 JAM3


MEMORANDUN FOR EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF NAVAl RECORDS
Subj:    APPLICATION FOR CORRECT ION IN THE C A SE OF FIRST USMC

         Ref:     (a)      CG, IC B, Camp Smedley D. Butler ltr 1421 17E of 29
                           Oct 02
                  (b)      CG, MCD, Camp Smedley D. Butler itr 2920 of 20 Feb 03
                  Cc)      Senior Member BOI itr 1920 of 19 Apr 013
                  Cd>      10 USC 624
                  (e)      MCO P 1900.16 MARCORSEPMAN
1.       You requested we provide an advisory opinion (hereinafter “Applicant ”) application to remove his reentry code of RF-4 from his record or in the alternative reinstate Applicant to active duty in the paygrade of O3E along with restoring all pay and allowances affected by his discharge.
2. Opinion. We recommend the Board deny relief in part. Applicant’s discharge was in accordance with applicable regulations, however reenlistment codes are not assigned to officers, Accordingly, a DD215 should be issued correcting Applicant’s reentry code of RE-~4 to N/A on his DD214. For the remainder of relief requested Applicant fails to provide substantial evidence of probable material error or injustice.

3. Background
a.       On 12 October 2002, Applicant was attached to Headquarters and Service Battalion (HqSvcBn), Marine Corps Base (MCB), Camp Smedley D. Butler, Okinawa, Japan.

b.       On 12 October 2002, Applicant engaged in sexual activity both with his wife and with the wife of a Senior Airman.
c.       Per reference (a), the Commanding General (CG), MCB, Camp Butler notified Applicant that he intended to impose NJP



Subj:    APPLICATION FOR CORRECT I ON IN THE CASE OF FIRST
 U SMC

upon Applicant. Applicant: refused and demanded trial by court-martial.
d.       On 3 January 2003, Applicant’s command proceeded with his Article 32. After reviewing the Investigating Officer’s report, the CO, MCB, Camp Butler dismissed all charges without prejudice recommending that Applicant show cause for retention at a Board of Inquiry (Bol),
e.       In reference (b) , the CS, MCD, Camp Butler directed that a Board of Inquiry take place against ~ applicant .
f.       As shown in reference Cc) , Applicant was subject to a Board of Inquiry on l’7 April 2003. The Board of Inquiry found that a preponderance of. the evidence proved that the Applicant engaged in misconduct or moral professional dereliction of an officer. Further, the Board recommended, by a vote of 3-0, that Applicant’s receive a discharge with an. Other Than Honorable characterization of service.
g.       Applicant now requests that. his reentry code of RE~4 be removed and also requests reinstatement to active duty in the paygrade of 03-E, along with restoration of all pay, allowances, entitlements, rights and privileges, that were affected by his discharge. Applicant claims that because the acts of misconduct came from a woman who participated in the sexual acts freely, and later lied about it., the Applicant’s case was handled at an inappropriately higher Level , and therefore he should not have been discharged.
4. Analysis

a.       Applicant, through counsel, suggests that because the accuser lied in statements made to law enforcement, the allegations of misconduct against him are baseless. The Applicant’s apparent argument, that the findings of the BOl are not factually supported, is without merit. The BOl was in the best position to determine whether the allegations were substantiated or not, and unanimously concluded that misconduct had occurred. It is noteworthy that the BOl found several charges against the Applicant to be unsubstantiated. Applicant fails to provide any evidence that any error or injustice occurred at his BOI proceedings.
b.       Applicant’s claim of unreasonable multiplication of charges is without merit. The case law arid citation to the rules for court martial cited by the Applicant are not applicable to the Applicant’s BOI proceedings.
c.       The Applicant next argues that he should be promoted to the rank of captain with an effective date of 1 July 2003. Applicant contends that the Marine Corps f-ailed to comply with statute and regulations when it delayed his promotion. Specifically, Applicant argues that he was not: provided written notice of the protect :on delay prior to the effective date of hi~ appointment arid that his promotion delay was not properly ratified and extended by the Secretary of the Navy in accordance with statute and regulation.. This argument is without merit. Applicant’s name was not included on the July promotion MARADMIN, which published the authority for all July promotions on 24 June 2003. Further, on 15 duly 2003, the Commandant of the Marine Corps forwarded written notice of the specific grounds for the promotion delay to Applicant, The governing regulatic~ns require that notice be given to the officer prior to the appointment date, or as soon as practicable. Applicant was put on notice of his promotion delay when his name did not appear on the monthly promotion authority and he was given written notice of the specific reason for the delay shortly thereafter. Additionally 1 reference (d) provides that a promotion delay may not exceed 6-months, unless extended by the Secretary of the Navy. In this case, Applicant was separated from the Marine Corps on 9 December 2003, prior to this 6-month period expiring. Lastly, Applicant’s removal from active duty by the Secretary of the Navy under chapter 60 of Title 10 precluded Applicant’s retention on the promotion list.
d.       In accordance with reference (e), only enlisted Marines are to be assigned a re-enlistment code on their DD-2l4s. For officers, this block is supposed by be marked “N/A”,
5.       Conclusion. A DD215 should he issued correcting Applicant’s DD214 in reference to block 2’7 to read “N/A” vice “RE-4”. No other relief is warranted.

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



H ead, Military Law
 Branch, Judge Advocate Division


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