DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
Docket No: 10502-08
24 February 2009
From: Chairman, Board for Correction of Naval Records
To: secretary of the Navy
REVIEW OF NAVAL RECORD
Ref: (a) Title 10 U.S.C. 1552
Encl: (1) Case Summary
(2) Subject 's naval record
(3) HOMC memo 1070 JAM2, 30 Dec 08
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 (NIP)
imposed on him on 10 October 2007, and removing all documents
related thereto from his naval record, to include the fitness
report he received for the 30 June-15 October 2007 period. He
contends that he received the NJP as a result of unlawful command
influence.
2. The Board, consisting of Mr. ve Mr . ee and Ms.
Pn. reviewed Petitioner's ‘allegations of error and
injustice on 4 February 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 reenlisted in the Marine Corps on 12 May 2007
with more than six years of prior active service. On 23 August
2007 his pattalion commander informed the regimental commander
that Petitioner had been suspended From drill instructor duty on
for a period of ten days and given a non-punitive letter of
caution which addressed his failures of leadership and
supervision, and use of improper training and mail procedures.
On 18 September 2007 the regimental commander advised the
battalion commander that the action taken against Petitioner was
insufficient, arxl that Petitioner would be seen at battalion
Level NUP for “his violations of the RIO and poor overait
leadership”. The regimental commander also stated that if the
battalion commander preferred, he would handle the NJP at
regimental level.
c. On 10 October 2007 Petitioner received NUP from his
battalion commander for six unspecified specifications of Article
92 of the Uniform Code of Military Justice. The punishment
consisted of forfeiture of $375 pay per month for two months.
d. Petitioner received a fitness report for the period 30
June 2007 to 15 October 2007 which mentions the nonjudicial
punishment of 10 October 2007.
e. In correspondence attached as enclosure (3), the Deputy
Head, Military Law Branch, Judge Advocate Division, Headquarters
Marine Corps, advised the Board, in effect, that although
Petitioner makes a showing of unlawful command influence, there
is nothing in the record to indicate when he became aware of the
issue. If Petitioner did not know about the regimental
commander's letter when he accepted NJP, relief would be
warranted as he has produced sufficient evidence to show that
unlawful command influence was present.
f. In response to the advisory opinion, Petitioner stated
that he was not aware of the regimental commander’s letter when
he accepted NUP.
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 concurs with the advisory
opinion. Accordingly, the Board finds the existence of an
injustice warranting the following corrective action.
RECOMMENDATION:
a. That Petitioner's naval record be corrected by setting-aside
the nonjudicial punishment of 10 October 2007 and the fitness
report for the period 30 June-10 October 2007, removing all
related documents from hig naval record, and restoring all
rights, benefits and privileges he lost as a result of the
nonjudicial punishment.
b. 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 in a 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. a,
ROBERT D. ZSALMAN JAMES ker
Ac
Recorder ting Recorder
5. Pursuant to the delegation of authority set. out in Section
6(e) of the revised Procedures of the Board for Correction of
Naval Records (32 Code of Federal Regulations, Section 723.6(e))
and having assured compliance with its provisions, it is hereby
announced that the foregoing corrective action, taken under the
authority of reference (a), has been approved by the Board on
behalf of the Secretary of the Navy.
a i | :
‘) Saas
Executive Dire
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