DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF ‘NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100

JSR
Docket No. 7838-10
14 Aprid 2011

Chairman, Board for Correction of Naval Records
Secretary of the Navy

  

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(a) 10 U.S.C. 1552

) DD Form 149 dtd 4 Mar 10 w/attachments

) HOMC MMER/PERB memo dtd 9 Jun 10

) HOMC JAMS memo dtd 31 Mar 16

) HOMC MMER e-mail dtd 5 Aug 10

) MCRC memo dtd 14 Sep 10 w/enclosures

) HOMC MIO memos dtd 21 Oct and 1 Nov 10
and 10 Mar il

(7) Subject’s ltr dtd 7 Apr 11

(8) Subject's naval record

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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 fitness report for 1 April
to 10 August 2009 (copy at Tab A). Enclosure (2) shows that the
Headquarters Marine Corps (HOMC) Performance Evaluation Review
Board (PERB) has directed removing this report. He further
requested removing references to the nonjudicial punishment
(NIP) of 10 August 2009 (copies of unit punishment book (UPB)
entry and Petitioner’s NUP appeal statement dated 13 August
2009, all of which HQMC has administratively removed, at Tab B).
He also requested setting aside his relief for cause (RFC) from
recruiter duty (copy of first endorsement dated 21 September
2009 on Commanding Officer (CO), Recruiting Station (RS) Orange,
California letter of 25 August 2009, requesting Petitioner’s
RFC, as modified by HQMC by removing the references to
Petitioner’s grade of corporal to which he was reduced and the
sentence expressly referencing his NUP, at Tab C). In addition,
he requested removing, from the Marine Corps Total Force System
(MCTFS), the draw case code “AO” (relieved from recruiter duty
for cause). He also requested removing two service record page
11 (“Administrative Remarks (1070)”) entries dated 31 July 2009,
one concerning arrest on suspicion of driving under the
influence of alcohol (DUI) and failure to notify the command,
and the other concerning ineligibility for promotion pending
adjudication of civil charges (copy at Tab D) and two dated 10
August 2009 regarding the NUP (copy at Tab E). HOMC has
administratively removed the two page 11 entries dated 10 August
2009. Finally, he impliedly requested restoring his additional
military occupational specialty (MOS) of 8411 (recruiter),
restoring his special duty assignment (SDA) pay terminated on 25
August #2009 (extending entitlement through his transfer from RS
Orange). and removing the page 11 entries dated 31 July and 25
August 2009 regarding termination of SDA pay “(copies at Tabs D
and F, respectively).

 
    

 

mat and Messrs. MBs leyenda
MBviewed Petitioner's allegations of error and
Injustice on 14 April 2011, 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.

2. The Board, consisting of

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. The first endorsement on the CO, RS Orange letter of 25
August 2009 requesting Petitioner’s RFC, paragraph 2, as it has
been modified by HQMC, reads as follows:

[Petitioner’s] actions have adversely affected the
image of the Marine Corps. He was charged with
failing to report to his command his charge and
conviction of driving under the influence of alcohol.
The offense for which he has been found guilty is
serious in nature and go [sic] against our Corps’
ethos and everything that we expect out of a Marine.
[Petitioner] willfully withheld his conviction of a
DUI in order to escape the consequences of his
actions. As a result, I have lost all trust and
confidence in his abilities to remain on this
independent duty. Therefore, I recommend that
[Petitioner’s] 8411 MOS be voided.
c. In enclosure (3), HQMC JAMS commented to the effect that
documentation of the NJP should be removed, on the basis that
Petitioner’s CO had set aside the NOP. JAMS stated that the NUP
“stemmed from [Petitioner’s] failure to report a civilian DUI
arrest,” however, the UPB entry actually says he was punished
“for failing to notify his command of his DUI conviction
[emphasis added] .” JAM5 noted that “the requirement to report
the conviction (rather than the arrest) is lawful.”

 

d. Enclosure (4) explains that PERB directed removing the
contested fitness report in light of enclosure (3).

e. In enclosure (5), the Marine Corps Recruiting Command
(MCRC) commented to the effect that the RFC should stand because
of Petitioner’s DUI conviction.

£. In enclosure (6), HQMC MIO commented to the effect that
the page 11 entry dated 31 July 2009 concerning arrest on
suspicion of DUI and failure to notify the command, the entry
dated 31 July 2009 concerning SDA pay, and both entries dated 10
August 2009 should be removed, but that the entry dated 31 July
2009 about ineligibility for promotion and the entry dated 25
August 2009 should stand.

g. Enclosure (7) is Petitioner’s letter taking issue with
the advisory opinion from MCRC and the unfavorable portions of
the opinions from MIO. Contrary to the MIO opinion at enclosure
(6), he contends that the page 11 entry dated 31 July 2009 that
concerns ineligibility for promotion pending adjudication of
civil charges should be removed, as the civil proceedings in his
case ended in March 2008. The UPB entry indicates Petitioner's
conviction had occurred by March 2008.

CONCLUSION :

Upon review and consideration of all the evidence of record, the
Board finds the existence of an injustice warranting partial
relief, specifically, further modifying paragraph 2 of the first
endorsement on the CO, RS Orange letter of 25 August 2009,
requesting Petitioner’s RFC, by removing the remaining reference
to the NJP; and removing the page 11 entry dated 31 July 2009
concerning arrest on suspicion of DUI and failure to notify the
command and the page 11 entry dated 31 July 2009 about SDA pay.

The Board finds the RFC should stand. In this regard, the Board
concurs with MCRC, but further notes that the reason for the RFC
was Petitioner's failure to report his conviction, and that JAM5
advised the requirement to report the conviction is lawful.
However, the Board finds the first endorsement on the request
for RFC should be amended further by removing the remaining
reference to the NJP that has been set aside. Finally, the
Board concurs with MIO regarding the page 11 entries.
Specifically regarding the page 11 entry dated 31 July 2009
about ineligibility for promotion pending adjudication of eivail
charges, the Board finds Petitioner’s conviction had occurred

before this entry was issued, but without documentation from the

court concerned, it is unable to determine when the proceedings
were entirely completed.

In view of the above, the Board directs the following limited
corrective action:

RECOMMENDATION:

 

a. That Petitioner's naval record be corrected by deleting
the following from paragraph 2 of the first endorsement dated 21
September 2009 on CO, RS Orange letter 5800 CO/mws of 25 August
2009 (Official Military Personnel File (OMPF), Commendatory
Derogatory - Other, image 6):

He was charged with failing to report to his
command his charge and conviction of driving
under the influence of alcohol. The offense
for which he has been found guilty is serious
in nature and go against our Corps’ ethos and
everything that we expect out of a Marine.

Paragraph 2, as amended, will read as follows:

[Petitioner's] actions have adversely affected
the image of the Marine Corps. [Petitioner]
willfully withheld his conviction of a DUI to
escape the consequences of his actions. As a
result, I have lost all trust and confidence

in his abilities to remain on this independent
duty. Therefore, I recommend that [Petitioner’s]
8411 MOS be voided.

b. That his record be corrected further by removing the
service record page 11 (“Administrative Remarks (LOT) ") entry
dated 31 July 2009 concerning arrest on suspicion of DUI and
failure to notify the command and the entry dated 31 July 2009
relating to termination of SDA pay (OMPF, Service - Contract,
image 40). This is to be accomplished by reconstructing the
page 11 on which the entries appear, or completely obliterating
the entries so they cannot be read, rather than merely lining

through them.

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.

d. 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.

e. That the remainder of Petitioner’s request be denied.

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 JONATHAN S. 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 1s 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.

Executive D