DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX REC
WASHINGTON DC 20570-54100 Docket No: 06628-09
27 October 2009
‘From: Chairman, Board for Correction of Naval Records
To: Secretary of the Navy
Subj
Ref (a) 10 U.S.C. 1552
(b) Manual for Courts-Martial
Encl DD Form 249 with attachments
(1)
(2) Case summary
(3) HOMC JAM6 memo dtd 18 Aug 09
(4) Subject's naval record
1. Pursuant to the provisions of reference (a), Petitioner, a...
former enlisted member of the Marine Corps, filed enclosure ({1)
with this Board requesting reinstatement of his rank of sergeant,
(pay grade E-5) effective 5 November 1975..
2. The Board, consisting of Ms eee Mr -
ae es reviewed Petitioner's allegations ©
injustice on 15 October 2009, and, pursuant to its regulations,
determined that the corrective aétion 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 the Board, Petitioner exhausted all
administrative remedies available under existing law and
regulation within the Department of the Navy.-
b, Although it appears that enclosure (1) was not filed ina
timely manner, it is in the interest of justice to waive the
statute of limitations and review the application on its merits.
c. Petitioner enlisted in the Marine Corps and began a
period of active duty on 19 April 1972, at age 22. He served
without disciplinary incident until 15 October 1975, when he
received nonjudicial punishment (NIP) for failure to obey an
order or regulation. Specifically, he was found guilty of
possessing alcoholic beverages in the barracks. He was awarded a
forfeiture of $345.00 pay and reduction to corporal (pay grade
E-4) but punishment was suspended for six months. .
d. On 7 November 1975, Petitioner was again charged with
failure to obey an order or regulation, specificaliy, failure to
obey the lawful order of a staff sergeant to “take part in what
the platoon was doing” on 3 November 1975. Petitioner’s
suspended reduction in rank to corporal was vacated on 5 November
1975, based on this alleged misconduct. The charge was referred
to a summary court-martial (SCM). On 16 December 1975, the SCM
found Petitioner not guilty.
e. Enclosure (3) is an advisory opinion from the
Headquarters Marine Corps Military Law Branch, Judge Advocate
Division (JAM6)., recommending that Petitioner’s request for
reinstatement of his pay grade be denied. JAM6 points out that
the suspended punishment from the NJP of 15 October 1975, was
' vacated on 5 November 1975, two days after Petitioner committed
the offenge for which the SCM was convened. Under the authority
of reference (b), a commanding officer has broad authority to
vacate a suspended punishment from a prior NUP. JAM6. believes .
that if the commanding officer, in this case, vacated the a
suspended punishment due to the events of 3 November 1975, he was.
well within his authority to do so, and the not guilty finding of
the SCM does not invalidate his decision.
CONCLUSION:
Upon review and consideration of all the evidence of record the
Board concludes that Petitioner's request warrants favorable
action, notwithstanding the advisory opinion. Although the not
guilty finding at the SCM does not automatically invalidate the
decision to vacate the suspended NUP, the Board believes that
under the circumstances of this case the interest of justice
would be better served by correcting the record to show that
Petitioner was not reduced to corporal on 5 November 1975, but
continued.to serve as a sergeant until his discharge on
3 June 1976.
RECOMMENDATION :
a. That Petitioner's naval record be corrected to show that.
he was not reduced to corporal on 5 November 1975, but continued
to serve aS a sergeant until his discharge on 3 June 1976.
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. “SALMAN BRIAN Darl Droog GEORGE
_ Recorder . Acting Recorder
5. The foregoing action of the Board is submitted for your
review and action. :
Loe!
W. DEAN PFERFF
Executive Disector
Reviewed and approved:
i] v4
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