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NAVY | BCNR | CY2007 | 06966-07
Original file (06966-07.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
                                                      WASHINGTON DC 20370-5100
                                            

                                    CRS
                                                                                 Docket No: 6966-07
                                                                                 6 March 2008








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 5 March 2008. Your allegations of error arid 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 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. 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,


                                                      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
                                                                                           JAM 7
                   SEP 2 7 2007

         MEMORANDU M FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF
 NAVAL RECORDS
Subj:    APPLICATION FOR CORRECTION IN THE CASE OF

Ref:     (a) MARCORSEPSMAN MCO Pl900.16F

1.       You requested an advisory opinion ~ (hereinafter “Applicant”) application, docket #06966-07, Lu request removal of the nonjudicial punishment (NJP~ he received on 16 June 2005 from his record, and upgrade his reenlistment code.
2.       Opinion . We recommend the Board deny Applicant’s request. Applicant’s NJP and reenlistment code were in accordance with applicable regulations. Moreover, Applicant fails to provide substantial evidence of probable material error or injustice in support of his application.
3. Background

a.       On 16 June 2005, the Commander, Lima Company, 3d Battalion, 4~ Marines, imposed NJP upon the Applicant for disobeying a lawful order, and dereliction of his duties in violation of Article 92 and assault in violation of Article 128, Uniform Code of Military Justice (UCMJ). Applicant received forfeitures of $978.00 pay per month for two months and reduction to the rank of corporal (paygrade E—4). Applicant did not appeal.
b.       On 17 May 2007, the Commanding Officer, Headquarters
 Battalion, Marine Air Ground Task Force Training Command, Marine Corps Air Ground Combat Center, 29 Palms, CA, disapproved Applicant’s request to reenlist, and gave Applicant a reenlistment code of RE-3C.



c.       Applicant now requests that his NJP be removed from his record because his skills and judgment as a leader were affected by the Post Traumatic Stress Disorder (PTSD) from which he claims to have suffered. Also he wants his reenlistment code to be upgraded, so that he may reenlist in a different branch of the U.S. Armed Forces .

4.       Analysis

a.       No legal error occurred in the imposition of the NJP. Applicant has provided no credible evidence that his NJP was unjust or disproportionate. Based on the documentary evidence, Applicant was afforded his full procedural rights, including the opportunity to consult with an attorney as noted by his initials on NAVMC form 10132. Applicant was informed of his right to refuse NJP and to demand trial by court-martial, but instead voluntarily accepted NJP. These procedural rights are designed to ensure both fairs and final in the context of an administrative process.
b.       Per the reference, a Marine may receive an RE-3C reenlistment code if the Marine’s performance warrants and the reason can be documented. Clearly, Applicant’s performance as a Marine Sergeant was grossly inadequate as he failed his Marines by refusing to act as a leader in a combat environment and by assaulting another Marine. Applicant’s case does not warrant relief, and the RE-3C reenlistment code remains appropriate.
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 otherwise satisfactorily appear, that the alleged entry or omission in the record was in error or unjust. The Applicant has provided no evidence whatsoever in support of his application, other then the bare assertion that the NJP was unjust.
5.       Conclusion. No corrective action is warranted in this case because Applicant fails to demonstrate by substantial evidence that his NJP and his reenlistment code were in error or an injustice.
6. Please contact the Military Law Branch at (703) 614-4250, if you require additional information.

Head, Military Law Branch
Judge Advocate Division -
 By direction of the
Commandant of the Marine Corps

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