DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX ‘
WASHINGTON DC 20370-5100
CRS
Docket No: 2-08
25 August 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 20 August 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 5 February
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.
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,
5
Executive
Enclosure
DEPARTMENT OF THE NAVY
HEADQUARTERS UNITED STATES MARINE CORPS
3000 MARINE CORPS PENTAGON
WASHINGTON, DC 20350-3000 IN REPLY REFER TO:
1070
JAM3
FEB 05 2006
MEMORANDUM FOR EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF
NAVAL RECORDS
Subj: BOARD FOR CORRECTION APPLICATION
IN THE CASE OF : tess,
Ref; (a) SECNAVINST 5420.193
1. You requested an advisory opinion on es
(hereinafter “Applicant”) request to remove his nonjudicial
punishment (NUP) from his Official Military Personnel File
(OMPF) .
2. Opinion. We recommend that Applicant’s relief be denied.
Our analysis follows.
3. Background
a. On 10 April 2001, Applicant received NUP for violation
of Article 86, unauthorized absence, (two Specifications), and
Article 91, insubordinate conduct toward a warrant or non-
commissioned officer, Uniform Code of Military Justice (UCMd).
Applicant was sentenced to forfeiture of $563.00 pay per month
for 2 months, reduction to pay grade E-2, and restriction for 60
days. The forfeiture of $563.00 pay per month for 2 months and
the reduction to pay grade E-2 were suspended for 6 months.
b. Applicant requests that his NUP be removed based on the
assertion that Applicant was made to move on base to carry out
his restriction and his housing allowance was improperly
withheld.
4. Analysis
a. Initially we note that the board should reject the
application because it is untimely. In accordance with the
reference, 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 filed this application to
‘Subj: BOARD FOR CORRECTION OF NAVAL RECORDS (BCNR) APPLICATION
IN THE CASE OF ,gQiiipiiiami ease oi eile
USMC —
BCNR on 14 December 2007, over 6 years after his NJP of 10 April
2001. Applicant offers no justification for this untimely
application for relief and he has failed to make any showing
consideration.
b. No legal error occurred in the imposition of the NUP.
Applicant has provided no credible evidence that his NUP wags
unjust or disproportionate. Based on the documentary evidence,
Applicant was afforded his full procedural rights, including the
Opportunity to consult with an attorney as noted by his initials
on NAVMC form 10132. Applicant was informed of his right to
refuse NJP and to demand trial by court-martial, but instead
voluntarily accepted NUP. These procedural rights are designed
to ensure both fairness and finality in the context of an
administrative process.
c. In order to justify correction of a military or naval
record, the 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. The Applicant has provided no evidence
whatsoever in support of his application, other then the bare
assertion that the NUP was unjust.
d. Applicant asserts that his entitlement to BAH equates to
his NJP being somehow invalid. The fact that Applicant’s
housing allowance was improperly withheld, has no bearing on the
validity of the underlying NJP. Applicant’s claim has no merit.
S. 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 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.
ee a
TU
E. M. OSS
Deputy, Military Law Branch
Judge Advocate Division
By direction of the
Commandant of the Marine Corps
2
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