DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DG 20370-5100
SUN
Docket No: 00025-0989
22 February 2010
From: Chairman, Board for Correction of Naval Records
To: Secretary of the Navy
ees
Ref: (a) 1210 U.S.C. 1552
DD Form 149 with attachments
Case Summary
HOMC JAR4 advisory opinion dated 29 Sep 09
HOMC JAR4 advisory opinion dated 26 Jan 10.
Subject's naval record
PW DB
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1. Pursuant to the provisions of reference (a), Petitioner, a
Former warrant officer of the Marine Corps, filed enclosure (1)
with this Board requesting the removal of his general court-
martial from his official records, retirement in the grade of
Chief warrant officer (CWOS5), changing the narrative reason for
his retirement (retired voluntarily, unacceptable conduct
(moral /professional dereliction)} and recouping of any funds
deemed appropriate.
Mr 3 , reviewed Petitioner's allegations of error and
injustice on 18 February 2010 and, pursuant to its regulations,
determined that the limited 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, reguiations and policies.
2. The iin. consisting of Mr. —iaixr Mr, (Re and
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. Although enclosure (1) was not filed in a timely manner,
it is in the interest of justice to waive the statue of
limitations and review the application on its merits.
cc. Petitioner was serving as a CWO5 when he was found guilty
at a general court-martial of two lawful order violations and
conduct unbecoming of an officer and a gentlemen. As part of his
pretrial agreement, he pled guilty and voluntarily retired in the
highest grade satisfactorily served.
d. Enclosures (3) and (4} are advisory opinions from the
Headquarters Marine Corps, Staff Judge Advocate recommending
partial favorable action. The advisory opinions state that
Petitioner should have been retired in paygrade CWO4, his highest
rank satisfactorily served.
e. The Board does not have the authority to set aside the
findings of a court-martial, so Petitioner’s sentence was only
reviewed for clemency.
CONCLUSION:
The Board is expressly forbidden by law from reviewing the
findings of guilt rendered by a court-martial and therefore must
restrict its review to the sentence which was imposed.
Upon review and consideration of all the evidence of record, and
especially in light of enclosures (3) and (4), the Board
concludes that Petitioner's request warrants partial favorable
action relief.
RECOMMENDATION:
a. That Petitioner's naval record be corrected to show that
on 31 October 2005, he was retired from active duty, in the pay
grade of CWO4, vice CWO3 now of record.
b. That no further relief be granted.
c. That this Report of Proceedings be filed in the
Petitioner’s naval record.
4. Pursuant to Section 6(c) of the revised Procedures of the
Board for Correction of Naval Records (32 Code of Federal
Regulations, Section 723.6{c) 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. ZSALMAN BRIAN Avorn by Trooge
Recorder Acting 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 Regulation, 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.
me DEAN PERIFFER
Executive Director
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