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NAVY | BCNR | CY2006 | 07260-06
Original file (07260-06.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 2O370~51Oo


 LCC
 Docket No.7620-06
11 Dec 07



This is in reference to your application for correction of your naval record pursuant to the provisions of 10 USC 1552.
A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 10 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 CMC memorandum 5800 JAR3 of 22 October 2007, a copy of which is attached.
After careful and conscientious consideration of the entire record, a majority of 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 also 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. D EAN PFEIFFER
                                                                                 Executive Di rector





Enclosure

5800
JAR3
 OCT 22 2007



MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF NAVAL RECORDS
Subj:    BCNR PETITION

Ref:     (a)      MMER Route Sheet of 11 Sep 07, Docket No. 7620-06
         (b)      Title 10 U.S.C. § 6334
         (c)      Title 10 U.S.C. § 1552
1. Reference (a) requests an advisory opinion on petition to correct his record to show that he should be advanced to the rank of Gunnery Sergeant (E-7) , upon the occasion of his retirement from the Fleet Marine Corps Reserve (FMCR) on 1 January 2003.
2. Background . On 31 January 1992, at Camp Pendleton, California, then was convicted and sentenced at a trial by General Court Martial. Pursuant to his pleas of guilty, was convicted of twelve specifications of disobeying general regulations concerning the possession and transportation of ammunition, the importation of firearms and firearm parts and accessories, and the sale or transfer of firearms and ammunition to non-tax-exempt individuals in the Philippines; (b) three specifications of signing false U.S. Postal Service Customs Declarations that failed to disclose the presence of firearms, firearm parts and accessories and ammunition in overseas mail shipments; and (c) one specification of soliciting another to violate a general regulation by transferring U.S. military property to a foreign national. A court-martial panel of eight officers and enlisted members sentenced to confinement for 3 years, forfeiture of $250.00 pay per month for 12 months, reduction to Private (E-l), and a letter of reprimand. The Commanding General, Marine Corps Base, Camp Pendleton approved the adjudged findings and sentence. On 20 October 1994, the U.S. Navy-Marine Corps Court of Criminal Appeals affirmed the findings and sentence as approved (copy attached). On 31 May 1993, during the pendency of his court-martial appeal, because his sentence did not include a punitive discharge, was transferred to the FMCR after 20 years, 5 months and 6 days of active service.
3. Analysis .
a.       petition should be denied f or lack of timeliness. Reference (c) provides that no records correction may be made unless the claimant files a request for the correction within three years after he discovers the error or injustice. Moreover, has failed to demonstrate that in the interests of justice, the BCNR should extend the three-year filing requirement.









Subj:    BCNP. PETITION ICO

See 10 U.S.C. 1552(b). On the contrary, m ore than 14 years ago, knew his
          record reflected the rank of Private E-l when he was discharged from active duty by the Marine
         Corps on 31 May 1993. He did not take any steps to correct his record at that time because his
         criminal conviction and sentence (including his reduction in rank) were then undergoing appeal
         in the Navy-Marine Corps appellate courts. He had an additional opportunity to correct his
         record when he was placed on the retired list on 1 January 2003. filed his claim with BCNR on
         1 June 2006 more than three years after his placement on the retired list.

b.       application should be denied because he is, in effect, attacking his court-martial conviction and sentence. It should be stressed that his sentence included a reduction in rank and confinement. Under Article 58a, Uniform Code of Military Justice (UCMJ) (10 U.S.C. 858a) , an approved sentence to confinement “reduces that member to pay grade E-1, effective on the date of the approval.” Consequently, by operation of law, the applicant has been reduced to Private E-1. Moreover, under Article 76, UCMJ (10 U.S.C. 876), his court-martial proceedings, findings, and sentence are “final” subject only to a petition for a new trial (10 U.S.C. 873) and remission and suspension by the Secretary concerned (10 U.S.C. 874) . Finally, the authority of the BCNR and the Secretary under 10 U.S.C. 1552 to correct records does not extend to courts-martial except under very limited circumstances, none of which are applicable in this case. On December 1983, Congress amended section 1552 by adding subsection (f)
(f)      With respect to records of courts-martial and related administrative records pertaining to court-martial cases tried or reviewed under chapter 47 of this title (or under the Uniform Code of Military Justice (Public Law 506 of the 81st Congress)), action under subsection (a) may extend only to —
(1)      correction of a record to reflect actions taken by reviewing authorities under chapter 47 of this title (or under the Uniform Code of Military Justice (Public Law 506 of the 81st Congress)); or
(2)      action on the sentence of a court-martial for purposes of clemency.
Pub. L. 98-209, § 11(a), 97 Stat. 1407 (1983) . Thus, by its express terms, section 1552(f) precludes the BCNR from exercising that corrective power in court-martial matters. Cooper v. Marsh, 807 F.2d 988 (Fed. Cir. 1986); Stokes v. Orr, 628 F. Supp. 1085 (D. Kan. 1985).
c.       Reference (b) states that each member transferred from the FMCR to the retired list, shall be transferred in the highest enlisted grade in which the member served on active duty satisfactorily, as determined by the Secretary of the Navy. Although once held the rank of Gunnery Sergeant (E-7) , that does not mean he served


2




Subj:    BCNR PETITION ICO PVT



satisfactorily in that rank as required by the statute. It is noteworthy that 10 U.S.C. 6336(b) is only applicable to a Reserve enlisted member who “was previously administratively reduced in grade not as a result of the member’s own misconduct, as determined by the Secretary of the Navy.” 10 U.S.C. 6336(b) (2). has a court martial conviction that was upheld on appeal was reduced to Private E-l by a court-martial (not administratively) pursuant to his free and voluntary guilty plea regarding his “own misconduct.” There are no cases under Title 10 section 6334 or 6336 that override a final conviction and sentence.
4. Recommendation . JAR recommends that petition be denied. did not satisfactorily hold the rank of Gunnery Sergeant as evidenced by his final court-martial conviction and sentence. This adjudged and approved sentence was upheld on appeal; therefore his advancement on the retired list is not authorized. BCNR does not have the authority to reconsider a reduced rank as a result of a court-martial,

Drafted by:     
                  Lieutenant Colonel, USMC
                  Head, Civil Law Branch
                  Judge Advocate Division,
                  Headquarters U.S. Marine Corps
                  By direction of the
                  Staff Judge Advocate to CMC

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