Search Decisions

Decision Text

NAVY | BCNR | CY2007 | 04959-07
Original file (04959-07.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 2O37O~51OO



 BJG
 Docket No: 4959-07
 28 June 2007


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 28 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 report of the Headquarters Marine Corps Performance Evaluation Review Board (PERB), dated 23 May 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 report of the PERB. 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
3280 RUSSELL ROAD
QUANTIC0, VIRGINIA 221 34-51 03




 IN REPLY REFER TO:
 1610
 MM ER/ PERB
 M AY 2 3 2 00 7



MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF NAVAL RECORDS
Subj:    MARINE CORPS PERFORMANCE EVALUATION REVIEW BOARD (PERB) ADVISORY OPINION ON BCNR APPLICATION IN THE CASE OF

(a) DD Form 149 of 15 De c 06
          (b) 0 P161O.7E w/Ch 1-4


1.       Per MCO 1610.11C, the Performance Evaluation Review Board, with three members present, met on 9 May 2007 to consider Gunnery contained in reference (a) Removal of the fitness report for the period 20011001 to 20020520 (DC) was requested. Reference (b) is the performance evaluation directive governing submission of the report.
2.       The petitioner contends the report should be removed because the arresting officer, sometime around April 2005, dropped the charges and as verified by his lawyer. The petitioner provides a copy of a State of South Carolina, Uniform Traffic Ticket form supposedly certifying this fact.
3.       In its proceedings, the PERB concluded that the report is administratively correct and procedurally complete as written and filed. The following is offered as relevant:
a.       The Board found that the report is adverse because the petitioner was charged with a violation of Article 111 of the Uniform Code of Military Justice (UCMJ) and found guilty of DUI. The Board also found that the petitioner acknowledged the report and chose not to make a statement. The truth a accuracy of the report was certified by the reviewing officer and the third officer sighter.
b.       After reviewing the Uniform Traffic Ticket form, the Board found that what it is clear is that the petitioner was sighted for DUI in Beaufort, South Carolina on 27 April 2002, apparently jailed upon arrest, given a court date of 30 May 2002, and paid $737.00. Someone wrote “nolle prosequi” in the bottom

Subj:    MARINE CORPS PERFORMANCE EVALUATION REVIEW BOARD (PERB) ADVISORY OPINION ON BCNR APPLICATION IN THE CASE OF

left of the form indicating the prosecutor dropped charges, however, that fact is not certified nor is the signee or his or her authority identified. The Board also found that the petitioner fails to provide any statements from the arresting officer or his attorney supporting his argument. However, per paragraph 4003.6c(2)(d), “It is immaterial whether as a result thereof, probation is imposed; a sentence is executed; execution of a sentence is deferred, delayed, or suspended; or, by local law, custom, or procedure, charges are dismissed or expunged from civil courts’ records after payment of fine, completion of a term in jail or penitentiary, or completion of a period of probation. These actions do not change the character of the initial misconduct.” This is what the Board believed occurred in this case. Therefore, they concluded it would be inappropriate to expunge the report.
c.       After thorough review, the Board found that the petitioner was found guilty under the UCMJ; a separate and distinct legal system not bound by South Carolina criminal law. The petitioner’s 16 May a n on j udicial Punishment (NJP) is also a matter of record. The petitioner provided no evidence that this NJP was improperly held or is invalid.
4.       The Board’s opinion, based on deliberation and secret balloted fitn ess ft should remain a part
 offi icial military

5.       The case is forwarded for final action.
         



.
                   Chairperson, Perfo rmance
                  Evaluation Review Boar
                   Personnel Management Division
                  Manpower & R eserve Affairs
                   Department
                  By direction of the Commandant
                  of the Marine Corps
2

Similar Decisions

  • NAVY | BCNR | CY2006 | 10202-06

    Original file (10202-06.rtf) Auto-classification: Denied

    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. The names and votes of the members of the panel will be furnished uponrequestAlthough the Board voted not to remove the contested fitness report, you may submit the Cumberland County court order of dismissal to future selection boards.It is regretted that the circumstances of your case are...

  • NAVY | BCNR | CY2007 | 08913-07

    Original file (08913-07.rtf) Auto-classification: Denied

    In addition, the Board considered the report of the Headquarters Marine Corps (HQMC) Performance Evaluation Review Board (PERB), dated 19 September 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. Concerning the fitness report covering the period 20050720 to 20050725 (DC) and per paragraph 3004.2 of reference...

  • NAVY | BCNR | CY2008 | 09114-08

    Original file (09114-08.pdf) Auto-classification: Denied

    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. On 7 May 2008, Applicant submitted a request to the Board of Corrections of Naval Records (BCNR) to have his fitness report removed on the grounds that he was not afforded the opportunity to present his case to the CRC or defend himself with legal counsel. The rebuttal to the report was the petitioner’s best...

  • NAVY | BCNR | CY2013 | NR9085 13

    Original file (NR9085 13.pdf) Auto-classification: Approved

    Pursuant to the provisions of reference (a), Petitioner, an enlisted member of the Marine Corps, applied to this Board requesting removal of derogatory material from his naval record, specifically, two administrative remarks (page 11) entries dated 28 August and 1 September 2011, regarding his civil involvement charge of driving under the influence (DUI) of alcohol. The Board, consisting of Mr. Dixit, Mr. Sproul, and Ms. White-Olsen, reviewed Petitioner's allegations of error and injustice...

  • NAVY | BCNR | CY2010 | 07838-10

    Original file (07838-10.pdf) Auto-classification: Approved

    JAMS stated that the NUP “stemmed from [Petitioner’s] failure to report a civilian DUI arrest,” however, the UPB entry actually says he was punished “for failing to notify his command of his DUI conviction [emphasis added] .” JAM5 noted that “the requirement to report the conviction (rather than the arrest) is lawful.” d. Enclosure (4) explains that PERB directed removing the contested fitness report in light of enclosure (3). e. In enclosure (5), the Marine Corps Recruiting Command (MCRC)...

  • NAVY | BCNR | CY1999 | 03136-99

    Original file (03136-99.pdf) Auto-classification: Approved

    (HQMC) d. Enclosure (2) is the report of the HQMC Performance Evaluation Review Board (PERB) in Petitioner ’s case.The report reflects the PERB decision that Petitioner for removal of his fitness report should be denied This report reads in pertinent part as follows: ’s request . to not report the DUI conviction. ” (b), the applicable Marine Corps Order governing .civilian conviction will be reported in the CONCLUSION: Upon review and consideration of all the evidence of record, and...

  • NAVY | BCNR | CY1999 | 01983-99

    Original file (01983-99.pdf) Auto-classification: Denied

    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 report of the Headquarters Marine Corps Performance Evaluation Review Board (PERB), dated 18 March 1999, a copy of which is attached. Consequently, when applying for a correction of an official naval record, the burden is on the applicant to demonstrate...

  • NAVY | BCNR | CY2006 | 11165-06

    Original file (11165-06.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS2 NAVY ANNEX WASHINGTON DC 20370-5100BJGDocket No:11165-0623 January 2007This 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.It is noted that the Commandant of the Marine Corps (CMC) has directed modifying the contested fitness report for 1 January to 5 February 2002 by changing section K.6 to show you did not attach a statement...

  • NAVY | BCNR | CY2011 | 03147-11

    Original file (03147-11.pdf) Auto-classification: Approved

    Petitioner further requested removing the service record page 11 (“Administrative Remarks (1070)”) entry dated 19 March 2008, a copy of which is at Tab F. Finally, he requested setting aside the Commandant Of the Marine Corps (CMC)'s revocation dated 8 July 2008 of his selection by the Fiscal Year (FY) 2007 First Sergeant Selection Board and promoting him to first sergeant with the lineal precedence he would have had, but for the revocation. The PERB report at enclosure (2) stated that...

  • NAVY | BCNR | CY2013 | NR9172 13

    Original file (NR9172 13.pdf) Auto-classification: Approved

    Petitioner provided a supporting statement from Sergeant S---, affirming that since he had reason to believe his girlfriend, whom he thought was pregnant with his child, was receiving threats from her ex-boyfriend who still had a key to her house, Petitioner could not have stopped him from driving himself without a “physical altercation.” Sergeant S---‘s statement further reflects that “[Petitioner’s] actions were that of a concerned Marine and were within [sic] good intent” and that “My...