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NAVY | BCNR | CY2007 | 00944-07
Original file (00944-07.rtf) Auto-classification: Denied

DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 2O37O~51OO

 CRS
Docket No: 944-07
13 June 2007






Dear
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 13 June 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 March 2007, 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,





 Enclosure

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

 IN REPLY REFER TO:
1070 JAM3
 AP R 2
MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF NAVAL RECORDS
Subj:    APPLICATION FOR CORRECTION IN THE CASE OF
Ref:     (a) SECNAVINST 5420.193
 (b)      DoDIG memo of 25 MAR 1987; Subject: Criminal Investigations Policy Memorandum Number 10 - Criminal History Data Reporting Requirements
1.       We are asked to provide an opinion on Lance Corporal Ruiz’ (hereinafter “Applicant”) application, docket #00944-07, to request the removal of the nonjudicial punishment (NJP) she received on 7 January 1998.
2.       Opinion . For the reasons noted below, we recommend that the Board deny Applicant’s requested relief.
3.       Background

a.       From 19 May1997 to 2 January 1999, Applicant was attached to Headquarters and Service Battalion (HqSvcBn), let Force Service Support Group (1st FSSG), Camp Pendleton, California.
b.       On 7 January 1998, the Commanding Officer (CO), HqSvcBn, 1st FSSG, Camp Pendleton, CA, imposed NJP upon Applicant for violation of Article 121 (Larceny), Uniform Code of Military Justice (UCMJ). Applicant received reduction to paygrade E-l, forfeitures of $450.00 pay per month for a period of 2 months, and restriction for 60 days. The forfeitures of $450.00 pay per month for 1 month, and restriction for 30 days was suspended for a period of 6 months. The Applicant did not appeal her NJP.
c.       Applicant now requests to remove her NJP because it is hindering her ability to obtain certain civilian jobs.










Subj:    APPLICATION FOR CORRECTION IN THE CASE OF        USMC


         4.       Analysis

a.       First, we note that the Board should reject the application because it is untimely. In accordance with reference (a), an application for correction 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 26 January 2007, 8 years after her NJP of 7 January 1999. The Applicant offers no justification for this untimely application for relief and she has failed to make any showing that the interests of justice warrant its untimely consideration.
b.       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. Applicant has failed to offer sufficient justification to second guess the commander now.
c.       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 other wise satisfactorily appear, that the alleged entry or omission in the record was in error or unjust. Furthermore, we note that the Applicant did not appeal her NJP, indicating there was no error or injustice. Applicant has not provided any evidence to support that she was denied her procedural rights or that she did not engage in any illegal activities.
d.       Per reference (b), the NCIC III is an index of identifying data on persons with criminal records, and is part of the National Crime Information Center system. The databases are maintained by both individual states, and the Federal Bureau of Investigation (FBI). Naval Criminal Investigative Service (NCIS) provides information to the NCIC III in accordance with applicable Department of the Defense Inspector General (DODIG) requirements. The requirements in effect at the time require NCIS to submit data to the NCIC III on all military members investigated for certain specified Uniform Code of Military Justice violations and who were the subject of any resultant judicial or non-judicial military proceeding.















Subj:    APPLICATION FOR CORRECTION IN THE CASE OF

e.       Since the Applicant’s case fell within the reporting parameters set by the DoD IG, inclusion was required. Applicant’s NJP itself is not resident in the NCIC III database, rather the fact that NCIS opened a reportable investigation that was ultimately disposed of at NJP is captured in the NCIC III database. Absent an erroneous entry, the information submitted by NCIS to the NCIC III cannot be expunged. Additionally, because this is a Federal run database, this request falls outside the Board’s authority for correction.
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























3

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