DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

_ 2 NAVY ANNEX
WASHINGTON DC 20370-5100

 

BUG
Docket No: 2415-09
30 July 2009

From: Chairman, Board for Correction of Naval Records
To: Secretary of the Navy

    

Subj: 5 Oe
REVIEW OF NAVAL RECORD

Ref: {a} Title 10 U.S.C. 1552
Encl: (1) Four DD Forms 149 dtd 5 Sep 07 w/attachments
(2) HQMC MIO memos dtd 31 Jan 08, 8 Sep 08 & 16 Mar 09
‘w/fencl

(3) HQMC JAMS memo dtd 23 Sep 08
(4) Subj‘s ltr dtd 26 Feb 08
(5) Subj‘'s naval record

1. Pursuant to the provisions of reference (a), Subject,
hereinafter referred to as Petitioner, filed written

. application, enclosure (1), with this Board requesting that his
naval record be corrected by removing the service record page
1i(b) (“Administrative Remarks (1070)"} entry dated

i? January 2001 with undated rebuttal, concerning violation of
restriction awarded at the nonjudicial punishment (NJP) for
having a female visitor in his room; the page 11(b) entry dated
17 January 2001 with undated rebuttal concerning violation of
restriction awarded at NIP for unauthorized absence; page 11(c)
entry dated 14 August 2001, concerning a suspended
administrative discharge; page 11(c) entry dated 14 August 2001
with undated rebuttal, concerning unauthorized driving at Camp
Johnson; undated lined through page 11({c) entry; page 11(d)
entry dated 8 March 2002; the service record page 12 (‘Offenses
. and Punishments (1070)”) entries dated 7 and 9 August 2001; and
the page 12(c) entry dated 27 August 2001, concerning the NIP
on that date, with related page 12 dated 24 August 2001.

Copies of the page 11 and 12 entries at issue are at Tab A in
enclosure (1). He also requested modifying or removing his
“Proficiency/Conduct” marks for 2 June 2000, 3 January 2001,

5 April 2001, 29 August 2001, and 23 December 2002 and entering
missing entries for July 2000, 15 September 2000, and

31 July 2002. A copy of the Marine Corps Total Force System
data showing his “Proficiency/Conduct” marks as of
2 December 2002 is at enclosure (2). Finally, he requested
that his other than honorable discharge (OTH) for misconduct be
upgraded. ,

2. The Board, consisting of Messrs. Boyd and Storz and Ms.
McCormick, reviewed allegations of error and injustice on

28 July 2009, and pursuant to its regulations, determined that
limited relief should be granted. 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 which were available under existing law
and regulations within the Department of the Navy.

b. The page 12 on which the contested entries dated 7 and
9 August 2001 appear also includes uncontested entries.

c. In enclosure (2), the Headquarters Marine Corps {HOMC)
Manpower Information Operations, Manpower Management
Information Systems Division (MIO) comments to the effect that
Petitioner's request regarding page 11 entries warrants partial
relief, specifically, removing the page 11(d) entry dated
8 March 2002 with rebuttal dated 12 March 2002. MIO further
recommended removing the page 12 entries dated 7 and
9 August 2001, because they relate to an NUP Petitioner did not
receive, but did not address the page 12 entry dated
27 August 2001.

d. In enclosure (3), the HQOMC Military Law Branch, Judge
Advocate Division (JAM5) has commented to the effect that no
relief is warranted. This advisory opinion did not address
Petitioner’s request to remove the page 11(d) entry dated
8 March 2002. JAM5 incorrectly treated the page 12 dated
27 August 2001, documenting an NUP, as a counseling entry.
Petitioner contends this NUP was a “frivolous and harassing”
punishment for being five minutes late for formation. JAM5
stated that “Without further evidence or information, we do not
recommend granting [this] request.” Contrary to MIO, JAMS .
recommended that the page 12 entries dated 7 and 9 August 2001
stand, stating “Since [Petitioner] never had an NUP, there was
mo injustice in this case.” (Note: Petitioner actually had
NJP on two occasions for wrongful uce and possession of a
controlled substance, and failure to go to at the time
prescribed to accountability formation.)

2
e. In enclosure (4), Petitioner submitted further argument
concerning the contested page i1{c) entries dated
14 August 2001, clarified his request regarding
“Proficiency/Conduct” marks, and provided additional
information in support of that request.

‘CONCLUSION:

Upon review and consideration of all the evidence of record,
the Board substantially concurs with enclosure (2) in finding
the existence of an error and injustice warranting partial
relief, specifically, removal of the page 11(d) entry dated

8 March 2002, with the rebuttal dated 12 March 2002, as well as
the page 12 entries dated 7 and 9 August 2001, whose retention
enclosure (3) recommended. Concerning the page 12 entry dated
27 August 2001, documenting the NJP on that date, the Board |

' concurs with enclosure (3) in concluding that entry should
stand, as Petitioner has provided insufficient evidence to
support his contention that the NJP was “frivolous” and
“harassing”.

Regarding Petitioner’s OTH discharge, the Board finds that it

- Was warranted based on his misconduct, which resulted in two
NJUP’s. The Board substantially concurs with enclosures (2) and
(3) in concluding no further relief is warranted. In view of
the above, the Board directs the following limited corrective
action:

RECOMMENDATION:

a. That Petitioner’s naval record be corrected by removing
the service record page 11(d) (“Administrative Remarks (1070)")
entry dated 8 March 2002, and his rebuttal dated 12 March 2002.
This is to be accomplished by physically removing the page
11(d) on which the entry appears and the rebuttal, or
completely obliterating the entry and rebuttal so they cannot
be read, rather than merely drawing a line through them.

b. That Petitioner’s record be corrected further by
removing the service record page 12 (“Offenses and Punishments
(1070)”) entries dated 7 and 9 August 2001. This is to be
accomplished by reconstructing the page 12 on which the entries
appear, or completely obliterating the entries so they cannot
be read, rather than merely drawing a line through them.
c. 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.

ad. 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.

e. That the remainder of Petitioner's request be denied.

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 A Gaonee

Recorder Acting Recorder

5S. 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.

\aQae PhD

W. DEAN PFEIF
Executive Dir Oo