DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
CRS
Docket No: 10794-07
8 October 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 8 October 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 dated 15 January
2008, 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.
Accordingly, your application has been denied. The names and
votes of the members of the panel will be furnished upon request.
Tt 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 PFET
Executive Dir
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 5 2008
MEMORANDUM FOR EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF NAVAL
RECORDS
Subj : APPLICATION - OR CORRECTION | IN. CASE
Ref: (a) SECNAVINST 5420.193
(b) MCO P1070.12K (IRAM)
1. You requested we provide an advisory opinion on sis
ee reer (hereinafter “Applicant”) removal of a page 11
entry to his service record book (SRB) dated 12 July 1999.
2. Opinion. We recommend the Board deny Applicant's request.
Our analysis follows.
3. Background
a. On 12 July 1999, Applicant received a page 11 entry
stating that he was eligible but not recommended for promotion
to Sergeant.
b. Applicant states that he never received the non-
judicial punishment (NJP) referenced in the page 11 entry.
Furthermore, Applicant states that he was never given the
opportunity to initial yes or no when asked if he wanted to make
a rebuttal to the page 11 entry.
c. Applicant requests removing the page 11 entry from his
SRB, stating that because he never received NIP, the entry alone
is improper.
4. Analysis
a. First, we note that pursuant to reference (a),
enclosure (1), section 3, the Board may reject the application
for removal of the page 11 entry because it is untimely. An
application for correction of a record must be filed within
three years after discovery of the alleged error or injustice
unless the Board excuses the untimely filing in the interest of
justice. The applicant provided that he discovered the entry on
30 November 2007. However, his signature on the entry during
Subj: APPLICATION FOR CORRECTION IN THE CASE OF Sie,
July 1999 put him on notice of its existence. Applicant has
failed to make any showing that the interests of justice warrant
its untimely consideration.
b. Paragraph f. of reference (b) requires a page 11 entry
when a Marine is eligible but not recommended for promotion.
The entry should state the reason for the recommendation against
promotion. The evidence provided by Applicant indicates that an
appropriate entry was made, but that he was not thereafter
adjudicated by NUP. Furthermore, the fact that Applicant was
not awarded an NUP does not invalidate the page 11 entry that
generically references a pending NUP as a basis not to promote
the Applicant.
c. Finally, the Applicant states that because he was not
afforded the opportunity to initial a block stating that he
choose “to” or “not to” make a rebuttal, that his page 11 entry
should be removed. This claim is without merit. That he chose
not to indicate his election to make a rebuttal statement, or to
thereafter make a statement and have it included in his record,
does not cause the entry to be unjust.
5. Conclusion. Accordingly, Applicant's requested 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
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