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NAVY | BCNR | CY2007 | 03371-07
Original file (03371-07.rtf) Auto-classification: Approved


TRG
 Docket No:3371-07
 9 April 2008


From:    Chairman, Board for Correction of Naval Records
To:      Secretary of the Navy
Subj:    REVIEW OF NAVAL RECORD OF ____
                  

         Ref:     (a) Title 10 U.S.C. 1552
End:     (1) Case Summary
 (2)      Subject’s naval record
1.       Pursuant to the provisions of reference (a), Petitioner, a retired Marine, filed an application with this Board requesting that his record be corrected to show that he was not reduced in grade from private first class (PFC; E-2) to private (Pvt; E-l).
2. The Board, consisting of reviewed Petitioner’s allegations of error and injustice on April 2008 and, pursuant to its regulations, determined that the corrective action indicated below should be taken on the available evidence of record. Documentary material considered by the Board consisted of the enclosures, naval records, and applicable statutes, regulations and policies.
3.       The Board, having reviewed all the facts of record pertaining to Petitioner’s allegations of error and injustice, finds as follows:
a.       Before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulations within the Department of the Navy.
b.       Petitioner’s application was submitted in a timely manner.
c.       Petitioner enlisted in the Marine Corps on 5 July 2005 at age 18. Subsequently, he was convicted by a summary court— martial and was reduced in grade from PFC to Pvt. Further, a computer printout titled “Individual Separation Information” shows that he was charged with 33 days of lost time because of confinement and this lost time is entered in block 29 of his DD Form 214. The summary court-martial documentation is not filed in his record and the offenses are unknown. On 30 June 2006, Petitioner was transferred to the Temporary Disability Retired List (TDRL) in the grade of Pvt.
d.       On 23 January 2007 a Marine Corps Judge Advocate citing the Rules for Courts-martial Section 201(b) which states that
 “unless otherwise prescribed by the Secretary concerned, a summary court-martial shall be of the same armed force as the accused.” Since the summary court-martial officer was an Army officer and permission had not been granted, the review officer concluded that the court—martial did not have jurisdiction over the accused.
e.       Attached to enclosure (1) is an advisory opinion from Headquarters Marine Corps which recommends that Petitioner be reinstated to the grade of PFC. However, no mention is made of the confinement portion of the court-martial sentence.
CONCLUSION:
Upon review and consideration of all the evidence of record the Board concludes that Petitioner’s request warrants favorable action. Given the recommendation contained in the advisory opinion, the Board concludes that Petitioner’s record should be corrected to show that he was never reduced from PFC to Pvt and that he transferred to the TDRL in the grade of PFC. Further, if it can be verified that all or part of the 33 days of lost time was confinement, he should be credited with that time.
Although there is nothing concerning the summary court-martial filed in Petitioner’s record, it is clear that information concerning this matter should be filed in his record.
RECONMENDAT ION:
a.       That Petitioner’s naval record be corrected wherever necessary to show that he was never reduced from PFC to Pvt and that he was transferred to the TDRL in the grade of PFC.
b.       That he be credited with any time he spent in confinement as a result of the summary court-martial.
c.       That any material or entries inconsistent with or relating to the Board’s recommendation be corrected, removed or completely expunged from Petitioner’s record and that no such entries or material be added to the record in the future.
d.       That any material directed to be removed from Petitioner’s naval record be returned to the Board, together with this Report of Proceedings, for retention in a confidential file maintained for such purpose, with no cross reference being made a part of Petitioner’s naval record.
4.       It is certified that a quorum was present at the Board’s review and deliberations, and that the foregoing is a true and
 complete record of the Board’s proceedings in the above entitled matter.

ROBERT D. ZSALMAN        BRIAN J. GEORGE
Recorder         Acting Recorder
5.       Pursuant to the delegation of authority set out in Section
 6(e) of the revised Procedures of the Board for Correction of Naval Records (32 Code of Federal Regulations, Section 72 3.6(e)) and having assured compliance with its provisions, it is hereby announced that the foregoing corrective action, taken under the authority of reference (a), has been approved by the Board on behalf of the Secretary of the Navy.



                                    W. DEAN PFEIFFER
                                   Executive Director

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