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NAVY | BCNR | CY2006 | 05275-06
Original file (05275-06.rtf) Auto-classification: Approved
DEPARTMENT OF THE NA VY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100

                                             
                                             Docket No: 5275-06
                                             15 September 2006


 From:    Chairman, Board for Correction of Naval Records
To:      Secretary of the Navy
         
         Subj: REVIEW OF NAVAL RECORD OF  ___      __________
Ref:     (a) Title 10 U.S.C. 1552
En cl :    (1) DD Form 149 w/attach m ents
 (2)      Case Summary
(3)      Subjects naval record
1.       Pursuant to the provisions of reference (a), Petitioner, a enlisted member of the Marine Corps, applied to this Board requesting that his naval record be corrected by restoring him to the rank of sergeant (SGT; E-5).
2 The Board, consisting of Messrs reviewed Petitioners allegations of injustice on 16 August 2006 and, pursuant to its regulations, determined that the corrective action indicated below should be taken on the available evidence of record. Documentary material considered by the Board consisted of the enclosures, naval records, and applicable statutes, regulations and policies.
3.       The Board, having reviewed all the facts of record pertaining to Petitioners allegations of error and injustice, finds as follows:
a.       Before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulations within the Department of the Navy.
b.       Enclosure (1) was filed in a timely manner.
c.       On 10 January 2003 Petitioner reenlisted in the Marine Corps after more than four years of prior active service. At the time of’ the incident at issue, Petitioner was serving in Iraq with a Marine logistics unit.
-        d. A summary court-martial (SCM) convened on 5 January 2006 and found Petitioner guilty of conspiring with two other Marines to violate a regulation by punching holes in the extra fuel tanks of four Jordanian water trucks, and violating the regulation by punching holes in the fuel tanks. The court sentenced Petitioner
to forfeiture of $1345, restriction for 30 days (both forfeiture and restriction suspended), and reduction in rank from sergeant to corporal (CPL; E-4).
e.       In support of Petitioner’s application, letters were submitted from Petitioner’s company commanding officer and first sergeant, and a chief warrant officer, all of whom recommended restoration of his rank. They stated that Petitioner was assigned to the fuel depot protecting government property and that the sentence of a reduction in rank was too harsh in that there was no malicious intent. All three individuals also state that Petitioner should not have been taken to SCM, and non-punitive measures would have sufficed.
f.       Documentation submitted to the Board reflects that fuel was being continuously stolen by the Jordanian truck drivers and stored in the extra fuel tanks, with no action being taken against them. After many warnings to the truck drivers, Petitioner and the other Marines took matters into their own hands.
CONCLUSION:
Upon review and consideration of all the evidence of record the Board concludes that Petitioner’s request warrants favorable action. The Board believes that the circumstances of the offenses and the letters from his superiors justify suspension of the reduction to corporal. Petitioner was in a war zone and attempting to protect government property in his own way. While the SCM was proper, the Board concludes that the reduction in rank was too harsh and the interests of justice would be better served by showing that his reduction to CPL was suspended for six months.
RECONMENDAT ION:
a.       That Petitioner’s naval record be corrected to show that the SCM sentence of reduction to CPL was suspended for six months.
b.       That the record be further corrected to show that Petitioner was never reduced in rank from SGT to CPL.
c.       That any material or entries inconsistent with or relating to the Board’s recommendation be corrected, removed or completely expunged from Petitioner’s record and that no such entries or material be added to the record in the future.
d.       That any material directed to be removed from Petitioner’s naval record be returned to the Board, together with a copy of this Report of Proceedings, for retention in a confidential file maintained for such purpose, with no cross reference being made a part of Petitioner’s naval record.

2
4.       It is certified that a quorum was present at the Board’s review and deliberations, and that the foregoing is a true and complete record of the Board’s proceedings in the above entitled matter.

ROBERT D. ZSALMAN        ALAN E. GOLDSMITH
Recorder         Acting Recorder
5.       Pursuant to the delegation of authority set out in Section
 6(e) of the revised Procedures of the Board for Correction of Naval Records (32 Code of Federal Regulations, Section 723.6(e)) and having assured compliance with its provisions, it is hereby announced that the foregoing corrective action, taken under the authority of reference (a) , has been approved by the Board on behalf of the Secretary of the Navy.




                                                                        W. DEAN PFEIFFER
          Executive Director

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