DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20376-5100 .
JSR
Docket No. 4206-09
9 July 2009
From: Chairman, Board for Correction of Naval Records
To: Secretary of the Navy
Subi: ¥
REVIEW OF NAVAL RECORD (PARTIAL RECONSIDERATION)
Ref: {a) 10 U.S.C. 1552
Enel: (1) DD Forms 149 dtd 16 Apr 09 (two) w/attachments
(2) BCNR ltr to Subject JSR Docket No: 5828-08
less enclosure
(3) BCNR rept to SECNAV JSR Docket No. 8514-07
dtd 3 Apr 08 less enclosures
(4) HOMC MIO memo dtd 6 Jul 09
(5) Subject's naval record
1. Pursuant to the provisions of reference (a), Subject,
hereinafter referred to as Petitioner, filed enclosure (1) with
this Board requesting, in effect, that the applicable naval
record be corrected by removing the service record page 11
(“Administrative Remarks (1070)”) entries dated 27 July 2005
With her undated rebuttal (copies at Tab A) and 24 October 2005
{copy at Tab B). She also impliedly requested reconsideration
of her previous request, docket number 5828-08, denied on 14
November 2008 {enclosure (2) refers), to amend the wording of
the page 11 entry dated 11 April 2005 {copy at Tab C).
2. The Board, consisting of Ms. Wilcher and Messrs. Bowen and
McBride, reviewed Petitioner's allegations of error and
injustice on 9 July 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. As shown in enclosure (3), in Petitioner’s first
previous case, docket number 8514-07, the page 11 entry dated 1
August 2005, concerning her conviction of 6 June 2003 for
assaulting her husband, was removed because the charge had been
dismissed on 20 July 2005.
c. The contested entry of 27 July 2005 states Petitioner
was convicted of assaulting her husband on 11 October 2004, that
this made her subject to the Lautenberg Amendment of 1996
{concerning eligibility to carry firearms or ammunition), and
that she was therefore ineligible for reenlistment without a
waiver. She provides court documentation establishing that on
11 October 2004, she was charged with assaulting a neighbor, and
that on 15 March 2005, she was convicted of that offense, which
was not a qualifying conviction for purposes of the Lautenberg
Amendment. The entry of 11 April 2005 refers to this
conviction. The entry of 24 October 2005 states Petitioner no
longer falls under the Lautenberg Amendment, because of the
dismissal of 20 July 2005, and is now eligible for reenlistment.
c. In correspondence attached as enclosure (4), the
Headquarters Marine Corps office having cognizance over the
subject matter addressed in Petitioner's application has
commented to the effect that her request to remove the entries
dated 27 July and 24 October 2005 has merit and warrants
favorable action. That office further recommended modifying the
entry dated 11 April 2005 by removing “This has been your second
offense of search [sic] nature.”
CONCLUSION:
Upon review and consideration of all the evidence of record, the
Board finds the existence of an error warranting the relief
recommended in enclosure (4). In this regard, the Board finds
that the entry of 27 July 2005 should be removed as it is
materially in error. The Board further finds that with the
removal of both the entries dated 1 August and 27 July 2005, the
entry of 24 October 2005 no longer serves any valid purpose; and
the language, in the entry dated 11 April 2005, that “This has
been your second offense of search [sic] nature” is no longer
accurate. In view of the above, the Board directs the following
corrective action:
RECOMMENDATION:
a. That Petitioner's naval record be corrected by removing
the service record page 11 (“Administrative Remarks (1070})"}
entry dated 27 July 2005 and her undated rebuttal. This is to
be accomplished by physically removing the page 11 on which the
entry appears and the rebuttal, or completely obliterating the
entry and rebuttal so they cannot be read, rather than merely
lining through them.
b. That her record be corrected further by removing the
service record page 11 entry dated 24 October 2005. This is to
be accomplished by physically removing the page 11 on which the
entry appears, or completely obliterating the entry so it cannot
be read, rather than merely lining through the entry.
c. That her record be corrected further by modifying the
service record page 11 entry dated 11 April 2005 by removing
“This has been your second offense of search [sic] nature.”
d. 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.
.@. 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. 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.
Sutter ¢ (Puan
ROBERT D. ZSALMAN JONATHAN &. RUSKIN
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 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.
yer DD, Ge
FerlW. DEAN PFEIFFER
Executive Director
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