DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TUR
Docket No: 7639-10
30 August 2010
From: Chairman, Board for Correction of Naval Records
TO: Secretary of the Navy
Subj: REVIEW NAVAL RECORD Of
Ref: (a) 10 USE. 1552
Encl: (1) DD Form 149 with attachments
(2) Case Summary
(3) 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 that his naval record be corrected by
removing all references to the nonjudicial punishment (NIP)
imposed on 30 October 2009.
2. The Board, consisting of Messrs . [psi and ——_
reviewed Petitioner's allegations of error and injustice on 24
August 2010 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. Enclosure (1) was filed in a timely manner.
c. Petitioner received NUP on 30 July 2009 for failure to
obey a lawful order. The punishment imposed was a $1,475
forfeiture of pay, which was suspended for six months.
ad. On 23 April 2010 Petitioner submitted a written request
for removal of the NUP citing, in part, that the punishment
imposed was excessive. As a result of this request, on 7 May
2010, the commanding officer who imposed the foregoing NJP
submitted a letter stating that it had been set aside, and as
such all rights, privileges, and property that were affected were
restored. Nonetheless, the NUP remained in the record.
e. An advisory opinion (AO) from the Marine Corps Military
Law Branch, Judge Advocate Division (JAM3) dated 12 August 2010,
states, in part, that the NJP should be removed. The AOs
recommendation states, in part, as follows:
wan officer who imposes NJP may suspend, remit or mitigate
any part or amount of the unexecuted portion of that
punishment; may set aside in whole or in part that
punishment, whether executed or unexecuted; and may
restore all rights, privileges and property affected by
that punishment... the same battalion commander who imposed
the NUJP approved the request to remove it from the efttieial
military records.. the NJP should be removed.
CONCLUSION:
Upon review and consideration of all the evidence of record, and
especially in light of the AO, the Board concludes that
Petitioner's request warrants favorable action. In this regard,
the Board concludes that since his commanding officer set aside
the 30 October 2009 NUP, all references in his record regarding
the NUP should be removed or obliterated.
In view of the foregoing, the Board finds the existence of an
injustice warranting the following corrective action.
RECOMMENDATION :
a. That Petitioner's naval record be corrected by totally
obliterating or removing the 30 October 2009 NUP and all
references thereto.
b. That any and all materials 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 materials 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 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.
ROBERT D. ZSALMAN BRIAN ae
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.
Laon S
W. DEAN PFETRAE
Executive Di tor
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