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NAVY | BCNR | CY2007 | 07649-07
Original file (07649-07.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
                                              BOARD FOR CORRECT I ON OF NAVAL RECORDS
                                                      2 NAVY ANNEX
                                              WASHINGTON DC 20370-51 00

                                                                       
                                                              TRG
 Docket No: 7649-07
16 May 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 6 May 2008. 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 an advisory opinion furnished by Headquarters Marine Corps, a copy of which is enclosed.
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,



 ROBERT D. ZSALMAN
Acting 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
          JAM7
          FEB 14 2008

MEMORANDUM FOR   EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF NAVAL RECORDS
Subj:    BOARD FOR CORRECTION OF NAVAL RECORDS (BC~R) APPLICATION IN THE

1.       You requested an advisory opinion on Lance Corporal
(hereinafter “Applicant”) applicant docket #7649-07, request to remove the nonjudicial punishment (NJP) he received on
3 December 2005.
2.       Opinion . We recommend that Applicant’s relief be denied. Our analysis follows.
3.       Background

a.       On 9 October 2005, the Commanding Officer, ~ Maintenance Battalion, Charlotte, North Carolina, imposed NJP upon Applicant for violation of Article 92, failure to obey order or regulation, and Article 128, assault, Uniform Code of Military Justice (UCMJ). Applicant received forfeitures of 1/2 pay per month and reduction to the rank of Private
 (pay grade E-l). Applicant appealed his NJP on 3 December 2005.
b.       Applicant requests that his NJP be removed stating the punishment was disproportionate to the offense.
4. Analysis

a.       As an initial observation, we note that no legal error occurred in the imposition of NJP. The Applicant has provided no credible evidence that his NJP was unjust. Based on the documentary evidence, Applicant was afforded his full procedural rights, including the opportunity to consult with an attorney. Applicant was informed of his right to refuse NJP and chose to accept NJP. Applicant was clearly advised of his right to appeal. These procedural rights are designed to ensure both fairness and finality in the context of an administrative process.
b.       Nonjudicial punishment is an administrative proceeding, not a criminal trial. Therefore, the formal rules of evidence do not apply. The standard of proof at NJP is “by a preponderance of the evidence” rather than “beyond a reasonable doubt.” The Applicant’s commander was in the best position to determine the facts surrounding the case. This determination should not now be second-guessed.
c.       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. There is no error in the record. Applicant chose to assault another Marine and his command determined it was appropriate to punish him in accordance with Marine Corps regulations.
5.       Conclusion . No corrective action is warranted in this case because Applicant fails to demonstrate by substantial evidence that his NJP was in error or an injustice.
6.       This advisory opinion contains privileged atto rney-client work product and is provided solely to BCNR. Please contact the Military Law Branch at (703) 614-4250, if you seek to release this memorandum.




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

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