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NAVY | BCNR | CY2007 | 07175-07
Original file (07175-07.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 2O37O~IoQ
                  BJG
Docket No: 7175-07
19 November 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-me mbe r panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 16 November 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 from 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. The Board was unable to find you could not have reported the hazing offenses of other individuals without incriminating yourself. In view of the above, 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

                           N REPLY REFER TO
                                                                                 1070 JAM7
                                                                                           SEP 27 2007


MEMORANDUM FOR EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF NAVAL RECORDS
Subj:    APPLICATION FOR CORRECTION IN THE CASE
Ref:     (a) MCO P1070.12K (IRAN)
                   (b) MCO P5800.l6A (LEGADMINMA)
1.       You requested an advisory opinion
(herein after “Applicant”) application, docket #7175-07, requesting
to remove the report of misconduct from his Official Military
Personnel File (OMPF)
2.       Opinion . We recommend that the report of misconduct in Applicant’s OMPF remain unchanged.
3.       Background

a.       In November 2000, Applicant hazed a junior enlisted Marine and observed other Marines haze the junior Marine in violation of Article 92, and conduct unbecoming an officer by failing to report such serious offenses in violation of Article 133, Uniform Code of Military Justice (UCMJ).
b.       On 13 June 2003, the Commanding General (CG), Training Command (TCOM), Quantico, VA, conducted a Nonjudicial Punishment (NJP) hearing. The CG, TCOM determined Applicant had committed misconduct, but did not intend to impose NJP.
c.       On 3 November 2003, the Commanding General, Marine Corps Combat Development Command, Quantico, VA, submitted to the Commandant of the Marine Corps (CMC) a Disposition of Alleged Misconduct letter reporting the final disposition in Applicant’s case. Specifically, the CG, TCOM substantiated that Applicant struck the newly promoted Marine corporal on each thigh with his knee, and then watched as another officer and an enlisted Marine similarly struck the newly promoted corporal. The CG, TCOM disposed of the misconduct by giving him a Letter of Censure as opposed to a potentially harsher punishment at a nonjudicial or judicial proceeding.


Subj:    APPLICATION FOR CORRECTION IN THE CASE OF~

d.       Applicant’s chain of command recommended that he not be required to show cause for retention.
e.       On 24 February 2004, the Commandant of the Marine Corps notified Applicant that administrative proceedings against him were being terminated and that the adverse material concerning this matter would be entered into his OMPF.
f.       Applicant now requests that the report of misconduct be removed because it was placed incorrectly into his OMPF.
4. Analysis

a.       Applicant claims that error has occurred by the inclusion of unfavorable matters in the report of misconduct in his OMPF and therefore requests the report be removed from his OMPF. We note that Applicant does not allege, nor does our review of the record find, any procedural errors in the inclusion of the adverse material in Applicant’s OMPF. Our discussion follows.
b.       Reference (a) , establishes the standards and authority for inclusion of adverse material in a Marine’s OMPF. Specifically, CMC (MMSB) will file correspondence containing adverse material that a Marine has had the opportunity to contest, explain, or rebut.
c.       Per reference (a), each officer’s OMPF includes a Commendatory/Derogatory Folder. This folder contains various documents regarding civilian and military education, personal awards information, courts-martial/nonjudicial punishments, and other material reflecting significant personal achievement or adversity that is pertinent to making decisions for purposes of selection, assignment, and retention. Specifically, CMC (MMSB) will file correspondence containing adverse material that the Marine reported on has had the opportunity to contest, explain, or rebut, whether at a personal hearing or by statement, without additional referral to the individual. Applicant, as the subject of a criminal investigation, had the opportunity to contest the allegations, and also had the opportunity to discuss the same with the CG, TCOM.
d.       The fact that the misconduct was substantiated, that Applicant received a Letter of Censure, and that the final decision that Applicant would not be required to show cause for


2


Subj:    APPLICATION FOR CORRECTION IN THE CASE
retention is relevant to future decisions on selection, assignment, and retention. The information contained in Applicant’s OMPF related to his substantiated misconduct allows reviewers of Applicant’s record to view the entire report of misconduct including the endorsements, and as envisioned by reference (a) , make their own conclusion on the appropriate weight and relevance of the information.
e.       Chapter 4 of reference (b) sets out a specific framework for processing officer misconduct cases. Included in this framework are criteria for mandatory reports of misconduct involving officers. The required report criteria is the minimum requirement and does not prevent a commander from forwarding cases they believe are appropriate based on the facts of a particular case. In this case, the fact that Applicant was subject to an investigation by the Article 32 investigation and that the CG, TCOM substantiated misconduct are more than adequate to trigger the reporting requirements.
5.       Conclusion . Accordingly, we recommend that Applicant’s requested relief be denied.
6.       Please contact the Military Law Branch at (703) 614-4250, if you require additional information.



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














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