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NAVY | BCNR | CY2006 | 04878-06
Original file (04878-06.rtf) Auto-classification: Denied
                  DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100

 BJG
 Docket No: 4878-06
 10 August 2006
Dear Chief Warrant Officer
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 10 August 2006. Your allegations of error and injustice we e reviewed in accordance with administrative r~gu1ations arid 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 from Headquarters Marine Corps dated 15 March and 1 June 2006, and the memorandum for the record (MFR) dated 5 July 2006, copies of which are attached. The Board also considered your rebuttal letter dated 30 June 2006 with enclosure.
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 dated 15 March 2006, particularly noting the additional information reflected in the MFR, concerning the applicability to your case of the Marine Corps Manual for Legal Administration. The Board also observed that your record includes neither the investigation of your case nor your nonpunitive letter of caution; it merely mentions the investigation and unspecified administrative measures. In view of the above, 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,


DEAN PFEIFFER
 Executive Director
Enclosures
DEPARTMENT OF THE NAVY
HEADQUARTERS UNITED STATES MARINE CORPS
3000 MARINE CORPS PENTAGON
                                    WASHINGTON, DC 20350-3000
                                    IN REPLY REFER TO:
                                                                                           1070 JAM8


MEMORANDUM FOR EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF NAVAL RECORDS
Subj:    APPLICATION FOR CORRECTION IN THE CASE OF CHIEF WARRANT
         OFF ICER
Ref:     (a) MCO P5800.16A
 (b) MCO P1070.13k (IRAN)
1.       You requested we provide an advisory opinion on Chief Warrant Office XXX hereinafter “Applicant”) application requesting the removal of adverse material from her Official Military Personnel File (OMPF).
2.       Opinion . We recommend that Applicant’s request for relief be denied. Our analysis follows.
3.       Background

a.       On 10 Nay 2004, the Commanding General (CG), 1st Marine Aircraft Wing (1st MAW), Okinawa, Japan, initiated nonjudicial punishment (NJP) proceedings upon Applicant. At the NJP hearing, the CG, 1st MAW dismissed all charges against Applicant. Instead, the CG, 1st MAW decided that a non-punitive letter of reprimand would be the best course of action in Applicant’s case.
b.       On 2 August 2004, the Commandant of the Marine Corps (CMC) notified Applicant that the adverse material from her case would be included in her OMPF. Included in this notification were copies of the actual documents that would be included in her O~4PF and notice of her right to submit written comments on the adverse material. On 12 August 2004, Applicant submitted written comments through her chain of command, which were included in her OMPF.
4.       Analysis . Applicant’s request for relief is based on her belief that the adverse information is unjust and not in accordance with the governing regulations on personnel records. We disagree.








Subj:    APPLICATION FOR CORRECTION IN THE CASE OF WARRANT OFFICER

a.       Applicant claims that since nonjudicial or punitive action was not completed in her case there should not be any record of unfavorable information in her QMPF. As discussed below, the OMPF is a repository for more than misconduct substantiated by NJP or punitive proceedings. In Applicant’s case, the CG, 1st MAW conducted NJP, but ultimately decided that imposition of punishment was not appropriate. This determination was within the sole discretion of CG, 1st MAW. As required by reference (a), the CG, 1st MAW submitted a report of misconduct with a recommendation in Applicant’s case.

 b. Per reference (b), each officer’s OMPF includes a Commendatory/Derogatory Folder. This folder contains various documents regarding civilian and military education, personal awards information, courts-martial/non-judicial punishments, and other material reflecting significant personal achievement or adversity that is pertinent to making decisions for purposes of selection, assignment, and retention. Specifically, in accordance with paragraph 1000.4(2) (a) of reference (b), CMC (MI4SB) will file correspondence containing adverse material that the Marine reported on has had the opportunity to contest, explain, or rebut, whether at a personal hearing or by statement, without additional referral to the individual. This includes relevant memoranda prepared at HQMC resulting from official correspondence sent to and received by the Marine reported on, the reporting senior, or the reviewing officer. In this case, Applicant received notification and copies of the specific documents that would be included in her OMPF. In response, Applicant submitted a written comment to the adverse material that also became part of her OMPF.
c. Per reference (b), adverse material on a Marine may be included in a Marine’s OMPF either directly by the commander, or as required in officer cases, by a specified process as noted in reference (a) . CMC’s decision to include Applicant’s adverse material in her OMPF reflects the fact that the misconduct was substantiated in Applicant’s case. There are a myriad of reasons, some expressly noted in CG, 1st MAW’s report of misconduct, for not imposing NJP. However, a decision dismissing charges, as in this case, does not mean that the alleged misconduct was not substantiated. Instead, it reflects the commander’s discretionary decision following the careful balancing of many factors. The record clearly shows that the misconduct was substantiated in Applicant’s case: an investigating officer concluded Applicant committed misconduct;














2
Subj:    APPLICATION FOR CORRECTION IN THE CASE OF WARRANT OFFICER

Applicant accepted responsibility for her actions; and the language contained in the report of misconduct demonstrate that misconduct was substantiated.

 d.       We note that adverse material of this nature is consistent with that envisioned by reference (b). The fact that Applicant’s Commanding General substantiated misconduct in her case clearly falls under the umbrella of “other material reflecting significant personal achievement or adversity that is pertinent to making decisions for purposes of selection, assignment, and retention” found at paragraph 1000.4.2(a) of reference (b) . The adverse information, along with Applicant’s written comments, will be available for future selection boards, and assignment/retention personnel.
e.       We disagree with Applicant that the adverse material contains inappropriate references about the issuance of a non-punitive letter. The adverse materials in her case reference “administrative corrective measures” which is far broader than the prohibited reference to a non-punitive letter. Administrative corrective measures may include: additional training, remedial course work, greater supervision, extra military duties, to name a few.
f.       Finally, we note that while reference (a) precludes inclusion of the Commandant of the Marine Corps’ Officer Disciplinary Notebook (ODN) entry in the OMPF, no violation occurred here. The ODN entry is a report from a centralized database maintained by the Judge Advocate Division, Headquarters, U.S. Marine Corps. The adverse material in Applicant’s case includes only the formal report of misconduct with endorsements. The ODN entry is not in Applicant’s OMPF.
5.       Conclusion . Accordingly, we recommend that Applicant’s request to remove adverse material from her OMPF be denied.

 6.       Please contact the Military Law Branch at XXXXXXX if you require additional information


Head, Military Law Branch
Judge Advocate Division
By direction of the
Commandant of the Marine Corps











3
DEPARTMENT OF THE NAVY
HEADQUARTERS UNITED STATES MARINE CORPS
3280 RUSSELL ROAD
QUANTICO, VIRGINIA 22134-5103


 1070
MIO
 JUN 1 AUG

 MEMORANDUM FOR   EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF NAVAL RECORDS
Subj:    BCNR APPLICATION IN THE CASE OF CHIEF WARRANT OFFICER 2

1. Chief Warrant Officer XXXXX application with supporting documents has been reviewed concerning her request for removal of adverse material on file in her official military personnel file
 (OMPF).

 2.       MCO P1070.12K, Marine Corps Individual Records Administration Manual (IRAM), paragraph l000.4c(2) (a), sets forth guidance and provides information that pertains to “Other reports, statements, or correspondence of a military nature” that may be included in a Marine’s OMPF at Headquarters, U. S. Marine Corps. Limitations exist regarding the types of documents authorized for inclusion in the OMPF. Paragraph 4002 of MCO P5800.16, Marine Corps Manual for Legal Administration (LEGADMINMAN) provides information and guidance concerning reports of officer misconduct; paragraph 4004 of the LEGADMINMAN provides information and guidance concerning formal report of officer nonjudicial punishment (NJP) or disposition of allegations of- misconduct. The documents Chief Warrant Officer 2 Phair refers to is the Officer Disciplinary Report.
3.       Chief Warrant Officer XXXXX      was the subject of an investigation on alleged misconduct. Paragra 4002~of the LEGADMINMAN requires commanders to prepare a report _Commandant of the Marine Corps (CMC) (JAM) if an officer is the subject of a command investigation. The reported information will remain in the Commandant’s Officer Discipline Notebook and will only be provided to those with a need to know per paragraph 4002.4. The purpose of this reported information is to hold in abeyance all personnel actions (such as promotion, retirement, separation, or transfer) relating to reported officers. These personnel “stop” orders carry no punitive aspect, but rather are implemented until matters are resolved by the cognizant commander and/or civilian authority. Furthermore, paragraph 4002.4a states that such reports will not be included in the officer’s OMPF. As a result of the command investigation, her commander preferred charges to the Commanding General for nonjudicial punishment (NJP). The Commanding General dismissed all charges and terminated the NJP proceedings.








Subj:    BCNR APPLCIATION IN THE CASE OF CHIEF WARRANT OFFICER 2


4. Chief Warrant Office XXXXX claim that her records are in error and an injustice was côrrimi te because the LEGADMINMAN “does not State the requirement for enclosure (3) will be included in a Marine’s OMPF. .“ is supported by paragraph 4002.4a and 4004 of the LEGADMINMAN. As stated in paragraph 3 above, a report of alleged officer misconduct was made to CMC (JAM) . Paragraph 4004 of the LEGADMINMAN requires a written report of officer NJP be forwarded from the Officer Exercising General Court-martial Jurisdiction and a sample letter report of officer NJP is contained in chapter 4 of the LEGADMINMAN to assist commanders. The document contained in enclosure (3) of her application is a modified written report of officer NJP not in accordance with paragraph 4004 of the LEGADMINMAN. Her Commanding General dismissed all charges and terminated the proceedings.

 5. A telephone call was made by Mr. XXXXX to CMC (JAM) in regards to this case during January 2006. They confirmed the initial report of misconduct was conducted per paragraph 4002.4a of the LEGADMINMAN. Additionally, because enclosure (3), “Officer Disciplinary Close Out Report... “, did not meet the requirements per paragraph 4004 of the LEGADMINMAN, a revision to the LEGADMINMAN was necessary to address this. Even though paragraph 4004 is identified as “Formal Report of Officer Nonjudicial Punishment (NJP) or Disposition of Allegations of Misconduct”, the paragraph contains guidance and specific instructions on the formal report of officer NJP and “In other cases of substantiated serious officer misconduct not involving NJP, a similar report shall also be forwarded with recommendations concerning processing.” Serious officer misconduct is defined as any behavior for which administrative separation processing would be appropriate under SECNAVINST 1920.6.

 6. Chief Warrant Officer XXXXX was the subject of alleged officer misconduct and a report was made per paragraph 4002 of the LEGADMINMAN. As a result of an investigation, NJP was recommended that did not result in adjudication. The proceedings were terminated, therefore, the NJP does not exist nor is there a record on file. Enclosure (3) is not a report of NJP per paragraph 4004 of the LEGADMINMAN because NJP was not adjudicated. Her Commanding General took administrative corrective measures. Paragraph 0102 of the Manual of the Judge Advocate General, JAGINST 5800.7, specifically states this type of corrective measure is nonpunitive in nature, can be administered either orally or in writing, and is not considered punishment. Chief Warrant Officer XXXX states she received a nonpunitive letter of caution and per paragraph 0105 of JAGINST 5800.7, a letter that is issued to remedy a noted deficiency in conduct or performance of duty, and is a personal matter between the member and the superior issuing the nonpunitive letter. Furthermore, this letter may not be forwarded for inclusion in her OMPF. Chief Warrant Office alleged misconduct was not per SECNAVINST 1920.6, misconduct unbecoming an officer that could be punished by confinement of 6 months or more and any other misconduct which would require specific intent for conviction. Furthermore, it appears policy in place at the time of the event does not meet the guidance of paragraph 4004 of the LEGADMINMAN for inclusion in a Mariner s OMPF. In view of the above, it is recommended that the Board for Correction of Naval Records approve Chief Warrant Officer 2 XXXXX request for removal of the adverse material on file in her OMPF. Point of contact
                                                       Manpower Information Operations,
                                                      Manpower Management Information
2

MEMORANDUM FOR THE RECORD

 DATE:    5 Jul 06
DOCKET NO: 4878-06

 PET: USMC
 PARTY I CALLED XXXXX HQMC MIO

 WHAT I SAID: I asked what the HQMC JAM rep said when he contacted them re the legal admin manual issue.

WHAT PARTY SAID: informed me that the HQMC JAM rep stated that the legal admin manual was “gray” in this area and needed to be revised, however, they stood by their advisory opinion recommendation to deny all relief in this case.


                                                                        Performance Section
                                                                        Board for Correction of Naval Records

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