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NAVY | BCNR | CY2007 | 10679-07
Original file (10679-07.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100


 SJN
 Docket No: 10679-07
26 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 25 March 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 the advisory opinion furnished by Headquarters Marine Corps, a copy of which is attached.
After careful and conscientious consideration of the entire record, the Board found the evidence submitted was insufficient to establish the existence of probable material error or injustice. In this regard, 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
                                                                                           JAM3
 JAN 1 4 2008

MEMORANDUM FOR   EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF NAVAL RECORDS
Subj:    APPLICATION FOR CORRECTION IN THE CASE ~
1.       You requested an advisory opinion (hereinafter “Applicant”) application, docket #10679-07, which requested invalidation of a non-judicial punishment (NJP) and restoration of his previously held rank of corporal.
2.       Opinion . We recommend the Board deny relief. Applicant fails to provide substantial evidence that a material error or injustice occurred in the imposition of his NJP.
3.       Background

a.       In June 2005, Applicant received NJP for violation of
 Article 121, Larceny, Uniform Code of Military Justice (UCMJ) -
 Applicant was reduced to the rank of lance corporal (paygrade E 3 )
b.       Applicant now requests that he be restored to the rank of corporal, because he states he did not sign some of the NJP paperwork and therefore asserts his NJP is invalid.
4.       Analysis

a.       The Applicant has provided no evidence that his NJP was unjust. Based on the documentary evidence, Applicant was afforded his most important procedural right, the opportunity to consult with an attorney. The command fulfilled its obligation by informing Applicant of his right to counsel and then ensuring that Applicant was advised by counsel before proceeding.
b.       Applicant was informed by his counsel of his rights. After speaking to his counsel, Applicant appeared again before the command to accept non-judicial punishment. The fact that the documents provided by Applicant are not initialed is perhaps a procedural oversight but is not evidence that his rights were materially violated or that the process was unjust. Rather,

Applicant wishes the Board to overturn an otherwise proper NJP because the documents provided by Applicant do not appear to have been initialed by Applicant. This alleged oversight does not justify overturning the NJP.
5.       Conclusion . Accordingly, we recommend that Applicant’s request for relief should be denied.
6.       This advisory opinion contains privileged attorney-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.


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



























FOR OFFICIAL USE ONLY
2
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX

 WASHINGTON DC 20370-5100

CRS
Docket No: 8247-07
27 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 26 March 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.
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.
The Board found that you reenlisted in the Navy on 28 April 2000 after four years of prior active service. On 18 July 2001, you were discharged by reason of misconduct, with a general discharge. You were assigned a reentry code of RE-4, as required by governing directives.
As your present reentry code is correct, and you have not demonstrated that it would be in the interest of justice for the Board to assign a more favorable code as an exception to policy, there is no basis for granting your request. Accordingly, your application has been denied. The names and votes of the members of the panel will be furnished upon request.
The Board did not consider whether your characterization of service or reason for separation should be changed, since you did not ask for such consideration and you have not exhausted your administrative remedy by applying to the Naval Discharge Review Board (NDRB). You may apply to NDRB by submitting the attached DD Form 293.
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 PFEI:
Executive Di:
Enclosure
 2

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