DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
SMW
Docket No: 9893-07
7 February 2008
From: Chairman, Board for Correction of Naval Records
To: Secretary of the Navy
Subj: REVIEW OF NAVAL RECORD OF q
Ref: (a) 10 U.S.C. 1552
Encl: (1) Case Summary
(2) Subject's naval record
Ll. Pursuant to the provisions of reference (a), Petitioner, a
member of the Marine Corps, applied to this Board requesting
removal of the nonjudicial punishment (NJP) that he had on
8 November 2006, and the adverse fitness report that resulted
from the NUP.
2. The Board, consisting of Mr. @ppiiene, and
Mr . QQ reviewed Petitioner's allegafions of error and
injustice on 6 February 2008, and pursuant to its regulations,
determined that the corrective action indicated below should be
taken on the available evidence of record. Documentary material
considered by the Board consisted of the enclosures, naval
records, advisory opinion, and applicable statutes, regulations
and policies.
3. The Board, having reviewed all the facts of record pertaining
to Petitioner's allegations of error and injustice finds as
follows:
a. Before applying to this Board, Petitioner exhausted all
administrative remedies available under existing law and
regulations within the Department of the Navy.
b. Petitioner’s application was filed in a timely manner.
c. On 31 August 2004, Petitioner reenlisted in the Marine
Corps after four prior periods of honorable service.
d. On 1 October 2006, Petitioner received a non-punitive
letter of caution for an alcohol related incident. On
8 November 2006, he had NJP for drunk and disorderly conduct. On
13 November 2006, his appeal was denied.
e. On 17 January 2007, Petitioner received an adverse fitness
report due to the NJP, in which his reviewing officer stated in
essence that following an alcohol related incident, an
investigation was conducted which resulted in Petitioner
receiving a non-punitive letter of caution, and the ESG Commander
subsequently directed that Petitioner receive NUP for the same
offense.
f. In his application, Petitioner states that he received a
non-punitive letter of caution for an alcohol related incident
and the command's decision to conduct NUP for the same incident
resulted from undue command influence. With his application,
Petitioner provided statements from his company commander and
sergeant major, who both state that their battalion commander was
directed by a superior officer to administer NUP.
g. Attached to enclosure (1) is an advisory opinion from
Headquarters Marine Corps, Military Law Branch of the Judge
Advocate Division, regarding the removal of Petitioner's NIP that
was administered on 8 November 2006, which states, in part, as
follows:
...-The Reviewing Officer stated in [Petitioner's]
17 Jan 07 fitrep [fitness report] that "the ESG
[Expeditionary Strike Group] Commander directed
that [Petitioner] receive NUP for his actions and
[Petitioner] was subsequently found guilty at BLT
Commander level NUP." Further the Sergeant Major,
lst Battalion, 8th Marines and the Company Commander,
Alpha Company, 1st Battalion, 8th Marines, both
state that their Battalion Commander was directed
by a superior officer to take the [Petitioner's]
case to Non Judicial Punishment. [sic]
---Per paragraph 1(d) (2), Part V of the [Manual
for Courts-Martial CM (2005 Edition)] states,
"A commander who is considering a case for
disposition under Article 15 will exercise personal
discretion in evaluating each case, both as to
whether nonjudicial punishment is appropriate, and,
if so, as to the nature and amount of punishment
appropriate. No superior may direct that a
subordinate authority impose nonjudicial punishment
in a particular case, issue regulations, orders, or
"guides" which suggest to subordinate authorities
that certain categories of minor offenses be disposed
of by nonjudicial punishment instead of by
court-martial or administrative corrective measure,
or that predetermined kinds or amounts of punishments
be imposed for certain classifications of offenses
that the subordinate considers appropriate for
disposition by nonjudicial punishment."
...-It is illegal for a Commander to direct that a
subordinate Commander impose a particular
punishment on a servicemember. If either the MEU
[Marine Expeditionary Unit] Commander or ESG
Commander wished to intervene, they should have
withheld disciplinary authority in this case from
the Battalion Commander and then initiated
disciplinary action at their respective level of
authority. Instead it appears that a subordinate
commander was directed to effect a desired result.
Such interference amounts to unlawful command
influence which should be remedied by granting
[Petitioner's] requested relief.
h. Attached to enclosure (1) is the Headquarters Marine Corps,
Performance Evaluation Review Board's decision letter of
17 January 2008, which removed Petitioner's adverse fitness
report dated 17 January 2007.
CONCLUSION:
Upon review and consideration of all the evidence of record, the
Board concludes that Petitioner's request warrants relief.
Specifically, the Board concurs with the advisory opinion.
Therefore, the Board concludes that the NJP that Petitioner
received on 8 November 2006, should be removed from his naval
record.
RECOMMENDATION:
a. That Petitioner's naval record be corrected by removing the
NJP dated 8 November 2006.
4. It is certified that a quorum was present at the Board's
review and deliberations, and that the foregoing is a true and
complete record of the Board's proceedings in the above entitled
matter.
ROBERT D. ZSALMAN BRIAN ~ Ye
Recorder Acting Recorder
5. Pursuant to the delegation of authority set out in Section
6(e) of the revised Procedures of the Board for Correction of
Naval Records (32 Code of Federal Regulation, Section 723.6(e))
and having assured compliance with its provisions, it is hereby
announced that the foregoing corrective action, taken under the
authority of reference (a), has been approved by the Board on
behalf of the Secretary of the Navy.
La ea
W. DEAN“
Executive D n or
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