DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TIR
Docket No: 12589-09
28 April 2010.
From: Chairman, Board for Correction of Naval Records
To: Secretary of the Navy
Subj: REVIEW NAVAL RECORD OF ¢@@ail
Ref: (a) 10 U.S.C. 1552
Encl: (1) DD Form 149 with attachments
{2) Case summary with advisory opinions
(3) Subject's naval record
1. Pursuant to the provisions of reference (a), Petitioner, an
enlisted member of the Marine Corps Reserve, filed enclosure (1)
with this Board requesting removal of derogatory documentation
from his record, to include all references of the nonjudicial
punishment (NIP) imposed on 7 August 2008.
The Board, consisting of Ms. ms Mr niin, and Mr.
Rreviewed Petitioner's allegations of error and injustice
on 27 April 2010 and, pursuant to its regulations, determined
that the partial 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.
ssi
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. Enclosure (1) was filed in a timely manner.
c. Petitioner is presently serving in the Marine Corps
Reserve in paygrade E-6. He served without disciplinary incident
until 7 August 2007, at which time he received NUP for wrongful
appropriation of $300 that was the property of another Marine.
The only punishment imposed at NJP was revocation of his
selection to gunnery sergeant, paygrade E-7. Subsequently,
reference to the NUP was entered in his official military
personnel file, which included both administrative remarks and
unit punishment book entries, and a selection for promotion
revocation letter.
d. On 21 November 2000 the NJP was set aside based solely on
a legal technicality. In this regard, the punishment imposed,
specifically, revocation of selection to gunnery sergeant, was
not an authorized punishment under Article 15 of the Uniform Code
of Military Justice.
e. In an advisory opinion dated 8 January 2010 from the
Headquarters Marine Corps Military Law Branch, it was recommended
that Petitioner’s request for removal of the derogatory material
referencing the NJP be granted because it had been set aside.
The advisory opinion further stated, in part, that his request
regarding removal of his revocation of selection to gunnery
sergeant should be deferred to the Enlisted Promotion Section.
f. An advisory opinion from the Headquarters Marine Corps
Enlisted Promotion Section dated 9 March 2010 noted that the NUP
had been set aside, but recommended that Petitioner’s request for
reinstatement and removal of his revocation of selection to
gunnery sergeant be denied because they were two distinctly
separate issues. The advisory opinion stated, in part, that his
promotion was revoked not solely due to the NUP, but also because
of hig poor judgment and lack of integrity. It also stated that
he failed to maintain the high standards of personal and
professional performance expected of a staff noncommissioned
officer.
g. In Petitioner's application, he asserts, in part, that
since the NUP was set aside he should be reinstated for selection
of and/or promoted to gunnery sergeant. :
CONCLUSION :
Upon review and consideration of all the evidence of record, the
Board concludes that Petitioner's request warrants partial
favorable action.
The Board notes the nature of Petitioner's’ misconduct and the
technicality for which his NUP was set aside. The Board's
finding, however, is based on the recommendations as depicted by
the Marine Corps advisory opinions. In this regard, the Board
substantially concurs with the recommendations contained in the
advisory opinions, and as such concludes that the documentation
referencing the NJP should be completely removed from the record.
Thies action should include, but not be limited to, the unit
punishment book, administrative remarks entries, and the
revocation of selection to gunnery sergeant letter.
The Board further concurs with the recommendation that
Petitioner’s request for reinstatement be denied. The Board
concludes that his poor judgment, lack of integrity, compromising
of good order and discipline, and failure to maintain the high
standards of personal and professional performance expected of a
staff noncommissioned officer were sufficient to warrant the
revocation of his selection to gunnery sergeant.
In view of the foregoing, the Board finds the exist -nce of an
injustice warranting the following partial correct os) action.
a os ee
RECOMMENDATION: AG
a. That Petitioner's naval record be corresis.. vy removing
all references of the NUP imposed on 7 Augur. * from his
official military personnel file. The rem os this
documentation should include, but not be ., to, the unit
punishment book, administrative remarks. = ,, and the
revocation of selection to gunnery sergeai #tter.
b. That no further relief be granted.
c. That only the material inconsistent with or relating to
the Board’s recommendation be removed from Petitioner’s record.
Further, that any material directed to be removed from
Petitioner’s record be returned to the Board, together with a
‘copy of this Report of Proceedings.
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.
Qa) Or
ROBERT D. ZSALMAN BRIAN J» GEORGE
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.
W. DEAN a
Executive Di
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