DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX

WASHINGTON DC 20370-5100 CRS

Docket No: 10555-07
17 March 2009

 

   
      

 

 

From: Chairman, Board for Correction of Naval Records
To: secretary of the Navy
Subj . soap Ce
TEW OF NAVAL RECORD —
Ref: (a) Title 10 U.S.c. 1552
Encl: DD Form 149

1)

2) HQMC memo 1070 JAM3, 18 May 07
3) HQOMC memo 1070 MIO 20 Sep 07
4)
5)

 

 

 

HOMC memo 1610 MMER/PERB, 19 Nov 07
Subject's naval record

1. Pursuant to the provisions of reference (a), Petitioner
applied to this Board requesting that his naval record be
corrected by setting-aside the nonjudicial punishment (NJP)
imposed on him on 4 December 2002, and removing the record of the
NJP and all documents related thereto from his naval record.

2. The Board, consisting of Mr. SGRiipga: “. S—biiiitiemgibie on

Ms. “PM, evs ewes Petitioner's allegations of error and
injustice on 3 December 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, 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. Although it appears that enclosure (1) was not filed in
a timely manner, it is in the interest of justice to waive the
statute of limitations and review the application on its merits.

c. Petitioner initially enlisted in the Marine Corps on 17
August 1992. He was promoted to staff sergeant, E-6, on 1 April
2000. In an e-maii dated 22 October 2002, Petitioner asked KH,
his former fiancée, to return the engagement ring he had given

her. She replied that she wonld do so once he had paid the money
he owed her on a (joint) credit card account. On 31 October 2002
the Commandin: Officer, Recruiting Station Phoenix, issuc:i a

military protective order (MPO) to Petitioner in which he was
ordered to remain a minimum of 1,000 feet from KH; to make no
contact with KH through phone, mail, e-mail, internet or third
party other than his noncommissioned officer in charge (NCOIC)
and Sergeant Major; and to report all contacts/attempts at
contact initiated by KH.

d. Petitioner sent an e-mail to KH on 20 November 2002. The
body of the message was as follows: “I found my father I just
wanted to thank you for all the help in the past that you helped
me with in finding him. It helped out. I need to also know the
balance for the credit card please.” In an undated letter, KH
advised Captain W that Petitioner had contacted her by e-mail.
Although she did not consider the message threatening, she felt
Petitioner had disregarded her wishes as well as the protective
order, which caused her to be concerned. She indicated that she
did not want to make unnecessary trouble for Petitioner, and that
she “just wanted to be left alone”. She sent Captain Wa copy of
the e-mail and asked that he inform her of “what you do”. She
also asked Captain W to tell Petitioner that the credit card
balance was $5,657.14.

 

 

 

e. On 4 December 2002, while serving as a staff sergeant,
Petitioner received NJP for violating a lawful written order, by
contacting KH by e-mail on or about 21 November 2002 [sic] in
violation of the MPO. The punishment consisted of the forfeiture
of $1,168.00 pay per month for one month, with the forfeiture of
$793.00 of that amount suspended for six months with provisions
for automatic remission. On 16 December 2002, Petitioner received
and acknowledged an Administrative Remarks, page 11, counseling
entry which addresses his violation of the MPO and an unspecified
verbal order, as well as a previous page 11 entry he received for
failing to be at his appointed place of duty at the time
prescribed.

f. On 23 January 2003, Petitioner received a fitness report
for the period from 22 June to 31 December 2002. The reporting
senior noted that Petitioner had received NUP for violating an
MPO issued by his recruiting station commander, and been relieved
of his duties as a canvasser recruiter as a result thereof. The
reporting senior indicated that an MPO was put in place after
Petitioner disobeyed a verbal order to refrain from contacting
KH. In his opinion, Petitioner was immature at times, and still
developing his leadership skills and traits. He described
Petitioner as “extremely technically proficient in systematic
recruiting”, and a “solid Marine” with the potential to “recover
from his past transgression”. The reporting senior rated
Petitioner as %3 of the 23 staff seryeants he reported on. he
reviewing officer assigned Petitioner a rating of
“Unsatisfactory” in the Comparative Assessment portion of the
report, but described him as a successful recruiter with the
ability to move past his NUP and become a productive staff NCO.

g. In an addendum to the fitness report dated 23 January
2003, Petitioner expressed his regret for his actions during the
reporting period and acknowledged that he was wrong to disobey a
direct order. He discussed several factors that contributed to
his lack of judgment, to include the stresses of recruiting duty,
his impending permanent change of station, and his fraught two
year relationship with KH, his former fiancée. He stated that
Since the relationship had been “off and on”, he thought they
might “get back together again”. KH had helped him locate
information about his father, whom he had not “known of” for
twenty-nine years. When he finally located his father in
November 2002, he reacted by contacting KH, and did so without
thinking about going through his NCOIC (as required by the MPO).
He resolved to think first before he reacts, and to work hard to
continue his career in the Marine Corps.

h. In correspondence attached as enclosure (2), the Board
was advised by the Head, Military Law Branch, Judge Advocate
Division, Headquarters, U.S. Marine Corps (HOMC), in effect, that
the Board should reject the application as untimely, as it was
filed more than four years after the date of the NUP; Petitioner
provides no justification for the untimely submission; and he has
failed to make any showing that the interests of justice warrant
consideration of the application by the Board. He also
recommended that the Board deny Petitioner’s request on the
merits. He noted that the formal rules of evidence do not apply
to NJP proceedings, and that the standard of proof is
“preponderance of the evidence” rather than “beyond a reasonable
doubt”. Petitioner's commanding officer determined that he
committed the charged offense, and Petitioner did not appeal the
NJP. He has not presented sufficient justification to second
guess the officer who imposed the punishment. Petitioner
violated the MPO, and admitted in response to adverse comments in
a fitness report that he was wrong to disobey the direct order of

his commanding officer.

i. In correspondence attached as enclosure (3), the Head,
Manpower Management Information Systems Division, HOMC,
recommended that the Board disapprove Petitioner’s request for
corrective action. He advised the Board, in effect, that the
counseling entry and MPO in this case are in substantial
compliance with governing directives, and that it was reasonable
for Petitioner’s commanding officer to issue the MPO and

counseling entry.

3. In correspondence attached as enclosure (4), the Board
was advised by the Chuirperson, Performance Evaluation Review
Board (PERB), Personnel Management Division, Manpower and Reserve
Affairs Department, HQMC, in effect, that the PERB considered
Petitioner’s application on 7 November 2007 and determined that
the fitness report in question is administratively correct and
procedurally complete as written and filed, and that it should
remain in Petitioner’s official military personnel file.

 

k. Petitioner contends, in effect, the issuance of an MPO
is generally appropriate after an incident of family violence or
harassment. There was no violence in this case, and he did not
harass KH. The fact that she objected to his request for the
return of the engagement ring he had given her did not make the
message harassing in nature. She became angry with him and
“lashed out to” his command. He was not given the opportunity to
rebut KH’s allegations, and his commanding officer did not seek
out additional information to substantiate the allegations. If
Petitioner had been given that opportunity, he would have advised
his commanding officer that KH was attempting to turn the Marine
Corps against him because she thought he had been mean to her. He
believes that had governing directives been followed, the MPO
would not have been issued, and he would not have received NUP.
He contends that his command allowed itself to be manipulated by
KH into doing her bidding with regard to their personal
relationship. He maintains it was wrong for a “disgruntled” ex-
girlfriend to use a Marine Corps officer to deal with
relationship issues, and unjust for his career to be harmed by
his commanding officer’s failure to exercise sound judgment.

 

1. Petitioner was promoted to gunnery sergeant, E-7, on 1
July 2008.

CONCLUSION:

Upon review and consideration of all the evidence of record, and
notwithstanding the contents of enclosures (2), (3) and (4), the
Board concludes that the sanctions taken against Petitioner for
violating the provisions of a military protective order were too
harsh, and that corrective action 1S warranted as a matter of
clemency.

The Board believes that although Petitioner contacted KH by
e-mail in violation of a lawful order, she had invited that
contact from him when she indicated she would return an
engagement ring to him once their joint credit card debt had been
repaid. He sent the e-mail to inform her that their joint effort
to find his father had been successful, and to determine the
amount of their credit card debt so that he could resolve ther
issue. The e-mail was sent for an innocent purpose, and it was
not threatening or harassing in tone or nature. Petitioner
displayed poor judgment by sending the e-mail directly to KH,
Administrative Remarks, page 11, counseling entry dated 16

December 2002, and the following fitness report and related
IRaterial:

Period of report: 20020622-20021231
Occasion of report: DC (CMC directed)
Reporting Senior: gai

 

b. That a memorandum be inserted in Petitioner’s naval
record in place of the removed report, containing appropriate
identifying data concerning the report; that such memorandum
state that the report has been removed by order of the secretary

c. That electronic records maintained by Headquarters Marine
Corps be corrected accordingly.

d. That any material or entries inconsistent with or
relating to the Board's recommendation be corrected, removed or
completely expunged from Petitioner's record and that no such
entries or material be added to the record in the future.

e. That any material directed to be removed from
Petitioner's naval record be returned to this Board, together
with a copy of this Report of Proceedings, for retention in a
confiden!ial file maintained for such purpose, with no cross
reference being made a part of Petitioner's naval record.

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 ] « J
Recorder Acting Re@corder

 

 

 

5. The foregoing report of the Board is submitted for your
review and action.

 

 

 

rt .
Reviewed and approved: s

B-AG-HA

ROBERT T. CALI
Assistant General Counsel
(Manpower and Reserve Affairs)

Reviewed and disapproved: