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NAVY | BCNR | CY2006 | 08979-06
Original file (08979-06.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
                           CRS
                                                                                          Docket No: 8979-06
                                                                                          27 February 2008



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 R ec or d sitting in executive session, considered your application on 27 February 2008. 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 11 June 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. In addition, the Board concluded that there is no basis for restoring your former rank of Gunnery Sergeant (GYSGT; E-7) as your reduction in rank was required upon your discharge by reason of misconduct, in accordable with MARCORPSEPM1N para 1004 2c(3). 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
3000 MARINE CORPS PENTAGON
                                    WASHINGTON, DC 20350-3000

                 
                           IN REPLY REFER TO:
          1070
 JAM 7
 DEC 11 2005
MEMORANDUM FOR EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF NAVAL RECORDS
Subj:    APPLICATION FOR CORRECTION IN THE CASE
         
         Ref :      (a)      BCNR ltr CRS:jdh Docket No. 08979-06 of 1 Nov 06
(b)      MCO P1900 IEF, MARCORSEPMAN


        
1. application for relief a injustices that agelessly occurred at Applicant’s Administrative Separation Board.
2.       Opinion . Applicant’s request for relief should be denied as his administrative separation was conducted in accordance with applicable regulations. Further, Applicant does not provide sufficient evidence of probable material error or injustice warranting his relief.
3.       Background
a.       On 5 June 2002, the Commanding Officer, Marine Air Control Squadron 2, Marine Air Control Group 28, 2d Marine Aircraft Wing, imposed nonjudicial punishment (NJP) upon the Applicant for one specification of willfully disobeying a superior commissioned officer, one specification of insubordinate conduct towards a noncommissioned officer, and one specification of conduct prejudicial to good order (adultery) and discipline, in violation of Articles 90, 91 and 134, Uniform Code of Military Justice (UCMJ). Applicant received forfeitures of $1000.00 pay per month for two months, 45 days restriction and a punitive letter of reprimand. Applicant did not appeal his NJP.
b.       On 31 July 2006, pursuant to a pretrial agreement, Applicant pleaded guilty at a summary courts-martial to one specification of failure to obey a lawful order and one specification of adultery, in violation of Articles 92 and 134, UCMJ. He was sentenced to 60 days restriction, forfeiture of two-thirds base pay per month for a period of one month, and to
be reduced from the rank of (pay grade E-7) to the rank of Staff Sergeant (pay grade E-6) . On 20 August 2006, Applicant requested clemency. The Commanding Officer, Marine Air Control Group 18, approved the sentence except the 60 days restriction.
c.       On 16 August 2006, Applicant received notification of separation proceedings from the Commanding Officer, Marine Air Control Squadron 4. Applicant was notified that he was being processed for administrative separation pursuant to paragraph 6210.6 of reference (b) by reason of misconduct, due to commission of a serious offense The noticatin wan b a ned upon

d.       On 28 August 2006, Applicant’s Administrative Separation Board was convened to consider his administrative separation. The Board found by a preponderance of the evidence that Applicant violated all acts alleged in the notification and recommended that he be separated from the Marine Corps with an under other than honorable conditions characterization of service. The discharge was subsequently approved on 13 September 2006 by the Deputy Commandant for Manpower and Reserve Affairs.
4.       Analysis

a.       Applicant states that he is seeking relief from an injustice that occurred in the conduct of his administrative separation board held on 28 August 2006 on Camp Foster, Marine Corps Base Smedley Butler, Okinawa, Japan.
b.       Applicant first alleges that he was not given the opportunity to properly prepare for the Administrative Separation Board. However, paragraph 6101 of reference (b) mandates that administrative separation proceedings are to be conducted in a timely manner and requires that Marines who do not or cannot conform to the required standards of conduct, discipline, and performance be separated promptly. In addition, paragraph 6102 of reference (b) recommends that the processing of an administrative separation be conducted from board action to the Secretary of the Navy within 55 working days after the Marine received notification of separation. In this case the service interest in timely resolution of the


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Subj:    APPLICATION FOR CORRECTION IN THE CASE OF


administrative separation proceedings were balanced with the Applicant’s opportunity for proper preparation for his Administrative Separation Board. Consequently, the 12 days from SNO’s notification of separation proceedings to the convening of his Administrative Separation Board was ample time to prepare his case.
c.       Furthermore, paragraph 6305 of reference (b) requires the respondent of an administrative separation proceeding be given a reasonable period of time, but not less than two working days, to respond to the notice. In this case, Applicant was given three working days in order to respond to the ~nt
d Secondly, Applicant equating ~ continuance request of 20 August 2006 subsano a ll I ~ impaired his ability to properly prepare for his Administrative Separation Board. The authority to grant Applicant a continuation resides in the Senior Member of Applicant’s Administrative Separation Board, and the Senior Member properly denied Applicant’s request.
e.       Thirdly, Applicant alleges that his command knowingly withheld and intentionally destroyed information that he needed to support his defense during his Administrative Separation Board. It must be noted that Applicant pled guilty to the offenses which served as the bases for his administrative separation. In addition, Applicant fails to identify the items that would have been material to his case. Applicant’s computer was seized pursuant to an investigation of Applicant’s adulterous relationship with a married woman. It was discovered that pornographic items were found on his computer, including ones he created in the act of adultery with a women he was convicted of having adultery with at his summary court-martial. It is hard to believe that the pornographic items discovered in his computer would assist him in his administrative separation proceedings.
f.       Fourthly, Applicant alleges that he was denied appropriate military counsel. Applicant was provided qualified military counsel for his Administrative Separation Board. His request for individual military counsel of his own selection was properly denied. Paragraph 6304.3 of reference (b) provides that a service member may request a qualified counsel who is assigned as a defense counsel, nearest to the site of the


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Subj:    APPLICATION FOR CORRECTION IN THE CASE OF


Administrative Board, and within 100 miles of the board proceeding (using the Official Table of Distances) . The determination of reasonable availability is within the discretion of the requested counsel’s Commanding Officer and that decision is final. Here, the requested counsel was approximately 311 miles away and the Commanding Officer for the requested counsel appropriately denied Applicant’s request.
g.       Fifthly, Applicant alleges that there was undue command influence in the conduct of the board. However, Applicant’s allegations, with nothing more, are unsupportable conjectures. The members of Applicant’s Administrative Separation Board were p cc: by approving late authority direct them If Applicant be l ieved~ there command influence on the members of the hoard, he could have exercised a challenge to the members, but failed to do so.
h.       The administrative record in this case supports Applicant’s separation for misconduct with an under other than honorable conditions discharge by reason of misconduct due to a commission of a serious offense.
5.       Conclusion . No corrective action is warranted in this case as Applicant fails to demonstrate sufficient evidence of error or injustice in his administrative separation.
6.       Please contact the Military Law Branch at (703) 614-4250, if you require additional information.

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










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