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NAVY | BCNR | CY2006 | 06919-06
Original file (06919-06.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
         WASHINGTON DC 2O37O-5IQ~         :        -


CRS
Docket No 6919- 06
          5        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 5 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 14 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      

E nclosure
DEPARTMENT OF THE NAVY
HEADQUARTERS UNITED STATES MARINE CORPS
3000 MARINE CORPS PENTAGON
                                             WASHINGTON, DC 20350-3000

                           IN REPLY REFER TO:
                                                                                  1070 / JAM3


         MEMORAND U M FOR EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF
NAVAL RECORDS

 Subj:    BOARD FOR CORRECTION OF NAVAL RECORDS (BCNR) APPLICATION IN THE CASE OF

         Ref      (a) SECNAVTNST 5420.193
 (b)      IRAM

End; (1) MCTFS NJP PAGE
          (2)      Copy of GCM (first award 000524  030523)

1.       You requested an advisory opinion on (hereinafter “Applicant”) request to remove his nonjud i cial punishments (NJP). Applicant does not specify which NJP entries he wants removed, but provides Page 12 entries from his service record book that include NJP’s dated 24 May 2000 (2 entries), 24 March 2000 (3 entries) and one entry on 14 December 2000.
2. Opinion . We recommend that Applicant’s request for relief be denied. Our analysis follows.
3. Background

a.       On 24 March 2000, Applicant received NJP for making a false official statement in violation of Article 107, Uniform Code of Military Justice (UCMJ). Applicant was awarded forfeiture of $263.00 pay per month for 1 month, 15 days restriction and 7 days extra duties. Applicant did not appeal his NJP.
b.       On 24 May 2000, Applicant received NJP for violating a lawful general order in violation of Article 92, UCMJ. Applicant was awarded $263.00 pay per month for 1 month, 14 days restriction and 14 days extra duties. Applicant did not appeal his NJP.
c.       Per the enclosure, on 29 April 2004, Applicant received his third NJP, this NJP was also documented in a fitness report covering the period 20040417 through 20040429.


Subj:    BOARD FOR CORRECTION OF NAVAL RECORDS (BCNR) APPLICATION IN

         THE CASE OF USMC
d.       The Page 12 entries provided by the Applicant have other NJP entries dated 24 May 2000, 24 March 2000 and 14 December 2000, however, these entries are stricken through with a single line and initialed.
4.       Analysis

a.       First, we note that the Board should reject the application for removal of his NJP because it is untimely. In accordance with reference (a) , an application for correct ion 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 13 July 2006, over 6 years after his nonjudicial punishments on 24 May 2000 and 24 March 2000. The Applicant offers that his Commanding Officer removed the NJP’s’in question and that he received a good conduct medal covering the period in which his NJP’s were imposed. We note there is no justification for this untimely application to remove his NJP’s and Applicant has failed to make any showing that the interests of justice warrant its untimely consideration.
b.       No legal error occurred in the imposition of any of the NJP’s. Applicant has provided no credible evidence that his NJP’s was unjust. Applicant was found guilty by his Commanding Officer. Based on the documentary evidence, Applicant was afforded his full procedural rights, including the opportunity to consult with an attorney as noted on Applicant’s signature on the NAVMC form 188-12. Applicant was informed of his right to refuse and of the NJP’s and to demand trial by court-martial. Applicant voluntarily agreed to accept NJP.
c.       The NJP’s dated 24 May 2000 (1 of 2 entries), 24 March 2000 (2 of 3 entries) and the entry on 14 December 2000, are each lined through and initialed. Pursuant to reference (b), this is an acceptable means to delete or strike materials from the Page 12.
d.       Applicant submitted a copy of a Good Conduct Medal (first award) that he states he received covering the period of 23 February 1999 to 22 February 2002. We are unable to confirm the authenticity of this award. It is not included anywhere in his OMPF, and the Marine Co.rps Total Force System indicates that Applicant has only received one Good Conduct Medal. After


2



Subj:    BOARD FOR CORRECTION OF NAVAL RECORDS (BCNR) APPLICATION IN THE CASE OF

further review of Applicant’s Official Military Personnel File (OMPF), it was discovered that Applicant has a different good conduct medal (first award) covering the dates of 24 May 2000 to 23 May 2003. Enclosure (2) is more in line with the dates between Applicant’s 2000 NJP’s and his 2004 NJP.
e.       Finally, 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. The Applicant’s mere assertion that the NJP’s were expunged is not credible evidence that they were appropriately removed. Similarly, the documentary evidence provided by the Applicant demonstrates otherwise.
5.       Conclusion . Accordingly, we recommend that Applicant’s request for relief be denied.
6.       Please contact the Military Law Branch at (703) 614-4250, if you require additional information.

U.S. Marine Corps head, Military Law Branch Judge Advocate Division




















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