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NAVY | BCNR | CY2006 | 06864-06
Original file (06864-06.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100

                  CRS
                                                                                 Docket No: 6864-06
13 December 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 12 December 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 27 September 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. 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
300fl MARINF (~ORp~ PTM~C~J
WASHINGTON, DC 20350-3000



 IN REPLY REFER TO:
 1070



MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF
NAVAL RECORDS

 Subj:   APPLICATION FOR CORRECTION IN THE CASE OF



1 . r equested we provide an advisory opinion on (hereinafter “Applicant”) application to request the punishment he received at his nonjudicial punishment (NJP) on 7 May 2006 be removed from his OMPF.
2.       Opinion . We recommend the Board deny Applicants request. The NJP imposed upon Applicant was sufficient in law and fact.
3.       Background

a.       On 7 May 2006, Applicant was attached to Marine Wing Support Squadron-472 (MWSS-472), Detachment Bravo, 4th Marine Aircraft Wing, West Over Air Force Reserve Base, Chicopee, Massachusetts.
b.       On 7 May 2006, the Commanding Officer (CO), MWSS—472, imposed NJP upon the Applicant for failure to obey, an order or regulation, in violation of Article 92, Uniform Code of Military Justice (UCMJ). Applicant was reduced to Corporal (pay grade E4), and received forfeitures of $568.00 pay per month for a period of 2 months. Forfeiture of $568.00 pay per month for 2 months was suspended for a period of 6 months.
c.       On 17 May 2006, Applicant appealed his NJP on the grounds that the punishment was disproportionate to the offense and unjust. The Commanding Officer, Marine Aircraft Wing Support Group 47 (MWSG-47), denied the Applicant’s appeal on 16 June 2006.
d.       Applicant now requests that his NJP be removed because he feels that he did not receive adequate legal representation prior to his NJP.
Subj:    APPLICATION FO R CORRECTION THE CASE OF CORPORAL



4.       Analysis

a.       As an initial observation, we note that no legal error occurred in the imposition of NJP. Applicant has provided no credible evidence that his NJP was unjust or disproportionate. Based on the documentary evidence, Applicant was afforded his full procedural rights, including the opportunity to consult with an attorney as noted by his initials on NAVMC form 10132. Applicant was informed of his right to refuse NJP and to demand trial by court-martial, but instead voluntarily accepted NJP. These procedural rights are designed to ensure both fairness and finality in the context of an administrative process.
b.       While Applicant did appeal his NJP, Applicant’s concerns were reviewed by the Commanding Officer, MWSG-47, who concluded that the punishment was neither unjust nor disproportionate; thereby denying his appeal.
c.       Non-judicial punishment is an administrative proceeding, not a criminal trial. Therefore, the formal rules of evidence do not apply. The standard of proof at NJP is “by a preponderance of the evidence” rather than “beyond a reasonable doubt.” Applicant’s Commanding Officer had ample evidence to impose NJP for failure to obey an order or regulation and was in the best position to determine the facts surrounding the case. Applicant does not claim factual innocence or any legal or administrative error in the conduct of his NJP. Instead, the Applicant asserts that since he never received a written counseling prior to receiving his NJP, he should not have received his NJP. His claim is without merit.
5. Conclusion . Accordingly, we recommend that Applicant’s request for his punishment to be rescinded be denied.
6. The point of contact for this case is at (703) 614-4250.


H e ad, Military Law Branch
J u dge Advocate Division
By direction of the
Commandant of the Marine Corps




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