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NAVY | BCNR | CY2006 | 10025-06
Original file (10025-06.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100

CRS
Docket No: 10025-06
3 May 2007



This is in reference to your applicati o n 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 iii executive session, considered your application on 3 May 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 15 December 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.







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 15

 MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF NAVAL RECORDS
Subj:    APPLICATION ~‘ ORRECTION IN THE CASE OF
          USMC
          Ref:     (a)      MCM, Part V
                  (b)      JAGINST 5800.7D
                  (c)      CO, HQBN, MCBH ltr 1330/HBAdm of 27 Sep 05

 1.       We are asked to provide an opinion on Sergeant Sloan’s (hereinafter “Applicant”) application to request the removal of his Fitness Report (FitRep) covering the period of 12 January 2005 to 7 September 2005 and the nonjudicial punishment (NJP) he received on 7 Sep 2005 from his Official Military Personnel File
 (OMPF).
2.       Opinion . Applicant’s request for removal of his FitRep and all references to his NJP from his OMPF should be denied.
3.       Background

a.       On 28 August 2005, Applicant was attached to Headquarters and Service Company (H&S Co), Headquarters Battalion (HQBN), Marine Corps Base Hawaii (MCBH). Applicant was arrested by civilian a uthorities for operating a motor vehicle while under the in fluence of alcohol. Applicant’s blood alcohol concentration (BAt) was 0.11%.
b.       On 7 September 2005, the Commanding Officer, H&S Co, HQBN, MCBH, imposed NJP upon Applicant for driving under the influence of alcohol, in violation of Article 111, Uniform Code of Military Justice (UCMJ). Applicant was reduced to the grade of corporal (paygrade E-4), received forfeitures of $938.00 pay per month for a period of 2 months, restriction for 45 days, and extra duties for 45 days. Forfeiture of $938.00 pay per month for a period of 2 months, was suspended for a period of 6 months. Applicant appealed his NJP on 22 September 2005, which was denied by the Commander , MCBH, on 7 October 2005.







4.       Analysis .
a.       As an initial observation, we note that no legal error occurred in the imposition of the NJP. Further, Applicant has provided no credible evidence that his NJP was unjust or disproportionate. The Applicant voluntarily accepted NJP and 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. Applicant was informed of his right to refuse NJP and to demand trial by court-martial. These procedural rights are designed to ensure both fairness and finality in the context of an administrative process.
b.       Applicant requested the presence of GySgt Hill to testify at the NJP on the issue of the Applicant’s good character. However, GySgt Hill did not arrive until after the NJP was completed. In fact, Applicant, himself was over two hours late for his own NJP. Pursuant to Part V. Par 4.c. (1) (F), of reference (a), service members may have witnesses present upon request if the witness’ statements will be relevant and they are reasonably available. Applicant’s command determined that the Applicant’s “outstanding character” was established at the NJP by other members of Applicant’s command and that GySgt Hill’s appearance was not so relevant as to justify further delay the proceedings. See paragraph 3 of the reference (c)
c.       Nonjudicial 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 preponderance of the evidence” rather than “beyond a reasonable doubt.” Applicant’s Commanding Officer had ample evidence to impose NJP and was in the best position to determine the facts surrounding the case.
d.       Applicant claims that the imposition of NJP was improper because he was pending a civilian charge for the same offense and that charge was ultimately dismissed. This argument is without merit. According to Part V, par i.f.(5), of reference (a), “Nonjudicial punishment may not be imposed for an offense tried by a State or foreign court unless authorized by regulations of the Secretary concerned.” The regulations of the Secretary concerned are found in paragraph 0124 of reference (b), and are triggered only after a person has been tried in










2
Subj:    APPLICATION FOR CORRECTION IN THE CASE OF USMC

state court. There is no prohibition on a commander imposing NJP prior to the matter being tried in state court. Imposing NJP prior to a civilian court action is a viable and lawful option within the discretion of a commander. Accordingly, no error occurred.

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



























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