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NAVY | BCNR | CY2007 | 06008-07
Original file (06008-07.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
                                    2 NAVY ANNEX
                                                       WASHINGTON DC 20370-5100


                                                                                                   CRS
                                                      Docket No: 6008-07
                                                                                           24 October 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 24 October 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 10 August 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.





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 JA M 7
                                                                                          AUG 10 2007

MEMORANDUM FOR EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF NAVAL RECORDS
Subj:    BOARD FOR CORRECTION OF NAVAL RECORDS (BCNR) APPLICATION
Ref:     SECNAVINST 5420.193
1.       We are asked to provide an opinion on (hereinafter “Applicant”) application, docket #06008-07, to remove the nonjudicial punishment (NJP) he received on 22 February 2003 from his military records.
2.       Opinion . We recommend that Applicant’s request for relief be denied. Our analysis follows.
3.       Background

a.       On 22 February 2003, the Commanding Officer, Battery H, 3d Battalion, 14 th Marines, 4 th Marine Division, Richmond, Virginia, imposed NJP upon Applicant for wrongful use of controlled substance in violation of Article ll2a, Uniform Code of Military Justice (UCMJ). Applicant was reduced to Private (pay grade E-l) which was suspended for 6 months. Applicant did not appeal his NJP.
b.       Applicant requests that his NJP be removed because Applicant was recommended for retention in the Marine Corps by the Administrative Separation Board. Applicant claims that he never knowingly ingested illegal drugs. Applicant also feels that his accomplishments after his NJP justify removal of his
 NJP.
4.       Analysis

a.       Per the reference, in order to justify correction of a military or naval record, Applicant bears the burden to show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the alleged entry or omission in the record was in error or unjust. The Applicant has provided no credible evidence in support of his application. There is no alleged legal error that occurred in the imposition or processing of the NJP.
b.       The administrative separation board’s failure to substantiate Applicant’s misconduct does not undermine the legal and factual efficacy of the NJP. Furthermore, the fact that the Applicant was retained at an administrative separation board does not render the Applicant’s NJP either erroneous or unjust. These separate actions are taken to address different concerns. An NJP proceeding makes a determination of guilt or innocence while an administrative separation board determines suitability for continued service.
5.       Conclusion . Accordingly, Applicant has failed to meet his burden and his request should be denied.
6.       Please contact the Military Law Branch at (703) 614-4250, if you require additional information.


Head, Military Law Branch, Judge Advocate Division

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