DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON D 20370-54700
G ete CRS

Docket No: 8095-08
17 June 2009

 

From: Chairman, Board for Correction of Naval Records ..*"
To: Secretary of the Navy _

   

NAVAL RECORD . Coe oa
Ref : (a) Tatle 10 U.S.C. 1552
, (b) Manual of the Judge Advocate General, par 0118
Encl: {1} DD Form.149

(2) Subject's naval record
{3} HOMC memo 1070 JAM3, 30 Mar 09

1. Pursuant to the provisions of reference (a), Petitioner
applied to this Board requesting that his naval record be
corrected by setting-aside the action which vacated the
suspension of a portion of the nonjudicial punishment that was
imposed on 15 May 2006 and suspended for a period of 180 days.

He contends that the vacation action occurred after the period of
suspension had expired.

2. The Board, consisting of Messrs. ins, “b- and i,

reviewed Petitioner's allegations of error and injustice on 10
June 2009 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. Petitioner enlisted in the Marine Corps on 18 August
2001. On 15 May 2006 he received nonjudicial punishment for
violating a lawful general order by wrongfully possessing a 12
gauge shotgun with pistol grip, an ASP Baton, one 5.56 mm round,
twenty-three .45 caliber rounds, and fifteen “slugger” 12 gauge
shotgun rounds. The punishment that was imposed consisted of
forfeiture of $900.00 pay per month for two months, restriction
and extra duties for 45 days, and reduction in rank from sergeant
to corporal. The execution of the reduction in rank, restriction
and extra duties was suspended for a pericd of 180 days.
ce. On 28 October 2006, Petitioner was charged with
wrongfully ordering a subordinate to perform extra guard duty in
iieu of formal disciplinary action. An unsigned unit punishment
book entry dated 8 December 2006 indicates that the suspension of
the nonjudicial punishment was vacated on that date. Ina letter
dated 14 February 2007, Petitioner’s battalion commander advised
the director of the higher headquarters consolidated
administrative center that the suspended portion of the
punishment imposed on Petitioner on 15 May 2006 “..is hereby
vacated” due to his commission of an offense on or about 28
October 2006, and that the effective date of the reduction “for
all pay and entitlements is 13 November 2006”. A USMC Fitness
Report which covers the period from 8 August to 13 November 2006,
was issued by Petitioner’s reporting senior on 13 March 2007. An
entry in section I of the report indicates that a “suspended
reduction from a previous non-judicial punishment was vacated”. A
third sighting officer stated in an addendum dated 23 April 2007
that the “report is late due to administrative errors that
required the report to be rerouted back through the reporting
chain”.

d. In correspondence attached as enclosure (3), the Head,
Military Law Branch, Judge Advocate Division, by direction of the
Commandant of the Marine Corps, recommends that Petitioner’s
request be denied. He states that Petitioner committed misconduct
during the period of the suspension. The provisions of reference
(b) permit the period of suspension to be interrupted pending
action to vacate the suspension. That reference does not state
that the vacation must take place within the [original] period
the suspension, thereby allowing the vacation to take place
following the original period of the suspension. Given the
proximity in time between the date of the misconduct and the end
of the period of suspension, it in neither unusual nor improper
for the command to take the time needed to investigate and
determine whether vacation of the suspension is justified.
Petitioner had other administrative remedies to address any
perceived procedural errors or injustices contemporaneously with
this action. Petitioner did not utilize any of them. Petitioner
raises no other errors which might attack the bedrock principles
of due process in connection with nonjudicial punishment.

e, In his rebuttal to the advisory opinion, Petitioner
contends that the suspension was vacated on 8 December 2006, as
evidenced by the unit punishment book. He maintains that his
battalion commander’s letter of 14 February 2007 falsely states
that the vacation action occurred on 13 November 2006.

£. Subparagraph (c} of reference (b) provides, in part,
that the running of the period of suspension of nonjudicial
punishment is interrupted by “the commencement of proceedings to
vacate suspension of the punishment”. Subparagraph (da) provides,
in. part, that the order vacating a suspension must be issued
“within 10 working days of the commencement of the vacation
proceedings”, and that the decision to vacate suspension of
nonjudicial punishment “is not appealable under paragraph 7, Part
Vv, MCM”.

CONCLUSION:

Upon review and consideration of all the evidence of record the
Board concludes that Petitioner's request warrants favorable
action. In this regard, the Board believes the vacation action
occurred after the 180 day period of the suspension period, as
extended, had expired.

RECOMMENDATION :

a. That Petitioner’s naval record be corrected by setting- -
aside the action which vacated the suspended portion of the
nonjudicial punishment that was imposed on 15 May 2006, and
restoring all rights, benefits and privileges lost as a result of
the execution of the portion of the nonjudicial punishment that
was suspended.

b. 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.

c. That any material directed to be removed from
Petitioner's naval record be returned to the Board, together with
a copy of this Report of Proceedings, for retention ina
confidential 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. 4SALMAN ES R. EANICIOS
Recorder Acting Recorder
5. The foregoing action of the Board is submitted for your

review and action.
Vane |

W. DEAN PFE

Reviewed and approved:

Q]R'T CS.

%-Q Oe

ROBERT T. CALI
ASSISTANT General Counsel
(Manpower andReserve Affairs)