DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
BAN
Docket No: 07795-09
26 October 2010
This is in reference to your application for correction of your
naval record pursuant to the provisions of Title 10, United
States Code, Section 1552.
A three-member panel of the Board for Correction of Naval
Records, sitting in executive session, considered your
application on 17 August 2010. Your allegations of error and
injustice were reviewed in accordance with administrative
regulations and procedures applicable to the proceedings of this
Board. Documentary material considered by the Board consisted of
your application, together with all material submitted in support
thereof, your naval record, and applicable statutes, regulations,
and policies.
After careful and conscientious consideration of the entire
record, the Board found the evidence submitted was insufficient
to establish the existence of probable material error or
iT justice:
You enlisted in the Marine Corps and served without disciplinary
incident until 11 January 2008, when you were convicted at a
summary court-martial (SCM) of assault. You were awarded a
sentence of forfeiture of two-thirds pay for one month, reduction
to the grade of E-4 (suspended for six months), and restriction
for a period of 45 days; however, the convening authority (CA)
disapproved the restriction. Since your reduction in rate was
suspended and your restriction was disapproved, the only
remaining portion of the sentence for the Board to correct would
be the imposition of forfeiture of two-thirds pay for one month.
However, the CA at the time of the offense has the authority to
set aside your SCM. Therefore, our office requested an opinion
from the CA (BGen S---, USMC). The CA found no reason to reverse
his original action or that any other administrative action be
taken. He believed the court-martial and sentence were
thoroughly reviewed, at the time of the incident, by him, the
executive officer and the sergeant major, for administrative
errors and injustices. A copy of the CA’s opinion was provided
to you by our office and you were allowed 30 days in which to
respond. In addition, our office received an advisory opinion
from the Headquarters Marine Corps, Military Law Branch, Judge
Advocate Division, (you were also provided a copy for your
response), indicating that there was no legal error in the
imposition of the SCM, and that you were afforded your full
procedural rights, including the opportunity to consult with an
attorney. Furthermore, the sentence was within the
jurisdictional limitations for the SCM. The Board has no
authority to consider claims of legal error at a court-martial,
and must limit its review to determining whether clemency is
‘warranted ‘in the sentence.
ae
Therefore, the Board, in its review of your entire record and
application, carefully weighed all potentially mitigating
factors, such as your youth and the letter from the SCM officer
on your behalf. Nevertheless, the Board concluded these factors
were not sufficient to warrant granting you clemency, promoting
you to staff sergeant, or removing your adverse fitness report.
Accordingly, your application has been denied. The names and
votes of the members of the panel will be furnished upon request.
It is regretted that the circumstances of your case are such that
favorable action cannot be taken. You are entitled to have the
Board reconsider its decision upon submission of new and material
evidence or other matter not previously considered by the Board.
In this regard, it is important to keep in mind that a
presumption of regularity attaches to all official records.
Consequently, when applying for a correction of an official naval
record, the burden is on the applicant to demonstrate the
existence of probable material error or injustice.
Sincerely,
Enclosures
NAVY | BCNR | CY2001 | 00806-00
opinion furnished by the Assistant Staff Judge Advocate for Military Law, Headquarters Marine Corps dated 13 April 2000, a copy of which is enclosed. On 29 June 1987, Petitioner was convicted by a special court-martial of failure to obey a lawful order, willfully disobeying a superior commissioned officer, resisting apprehension, and escape from custody in violation of Articles He was awarded confinement for 4 months, 90, 92 and 95 UCMJ. forwarding the case for appellate review, and he...
NAVY | BCNR | CY2002 | 08327-01
Petitioner's SCM record. SCMs;' therefore, the convening 25, UCMJ, criteria apply to authority essentially must "know" the officer who will serve as SCM. Petitioner accepted SCM and made no (l), Summary Court-Martial Officer's Petitioner had two opportunities to object and Petitioner cannot now claim that his SCM was However, he accepted SCM as part of the PTA knowing the convening authority could refer his Additionally, Petitioner t o did not oblect to if he had d. Witness' desire...
NAVY | BCNR | CY2002 | 05149-01
A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 15 January 2001. injustice were reviewed in accordance with administrative regulations and procedures applicable to the proceedings of this Board. Your record also reflects that on 9 December 1974 you submitted a written request for an undesirable discharge in order to avoid trial by court-martial for two periods of UA totalling four days, absence from your...
NAVY | BCNR | CY2012 | 05919-12
A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 19 June 2012. Documentary material considered by the Board consisted of your application, together with all material submitted in support thereof, your naval record and applicable statutes, regulations, and policies. Consequently, when applying for a correction of an official naval record, the burden is on the applicant to demonstrate the existence of probable...
NAVY | BCNR | CY2002 | 10502-02
If your .ed A three-member panel of the Board for Correction of Nava Records, sitting in executive session, considered your application on 10 June 2003. After consulting with legal you elected your right to present your case to an discharge board separation under other than honorable conditions by reas misconduct. the ADB and recommended an other than honorable reason of misconduct.
NAVY | BCNR | CY2004 | 01128-04
Documentary material considered by the Board consisted of your application, together with all material submitted in support thereof, your naval record and applicable statutes, regulations and policies.After careful and conscientious consideration of the entire record, the Board found that the evidence submitted was insufficient to establish the existence of probable material error or injusticeThe Board found that you enlisted in the Navy on 25 July 1951 at age 17. On 7 February 1955 you...
NAVY | BCNR | CY2002 | 08267-02
A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 17 June 2003. injustice were reviewed in accordance with administrative regulations and procedures applicable to the proceedings of this Documentary material considered by the Board consisted of Board. On 26 June 1975 you received NJP for two periods of absence from your appointed place of duty and were awarded restriction for seven days and a $100 forfeiture of...
NAVY | BCNR | CY1998 | 04848-98
In addition, the Board considered the advisory opinions furnished by Headquarters, Marine Corps, copies of which are attached. d. It is also important to note that Petitioner's battalion commander, not his company commander or company gunnery sergeant, referred his charge to a special court-martial and approved the sentence. We conclude that Petitioner's special court-martial did not result in an error or injustice and should not be removed from his record.
NAVY | BCNR | CY2004 | 01307-04
Documentary material considered by the Board consisted of your application, together with all material submitted in support thereof, your naval record and applicable statutes, regulations and policies.After careful and conscientious consideration of the entire record, the Board found that the evidence submitted was insufficient to establish the existence of probable materialThe Board found that you enlisted in the Marine Corps on 16 August 1983 at age 17. However, the Board concluded that...
NAVY | BCNR | CY2001 | 04560-01
After careful and conscientious consideration of the entire record, the Board found the evidence submitted was insufficient to establish the existence of probable material error or injustice. The Board found you enlisted in the Marine Corps on 8 January Your record reflects that you served for 1968 at the age of 23. a year and three months without disciplinary incident, but on 20 March 1969, you received nonjudicial punishment (NJP) for failure to obey a lawful order and were awarded a...