DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
. 2 NAVY ANNEX
WASHINGTON DC 20370-5100

 

SIN
Docket No: 11205-10
4 November 2010

From: Chairman, Board for Correction of Naval Records
TS! Secretary of the Navy

Subj : aon NAVAL RECORD or as.

Ref: (a) 20 T.8.£. 1352

Encl: (1) DD Form 149 dtd 9 Jul 10 with attachments
(2) Case summary with attachments
(3) Subject's naval record

1. Pursuant to the provisions of reference (a), Petitioner, a
active duty gunnery sergeant of the Marine Corps, filed enclosure
(1) with this Board requesting that the nonjudicial punishment
(NUP) he received on 28 December 2007 and fitness report (FITREP)
covering the period 1 July to 28 December 2007 be removed from

his Official Military Personnel File (OMPF) .

 

2. The Board, consisting of vr. Mr. QR aan
Mr. QP reviewed Petitioner's allegations of error and

injustice on 2 November 2010 and, pursuant to its regulations,
determined that the limited 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. In addition, the Board considered the advisory opinion
(AO) provided by the Staff Judge Advocate to the Commandant of
the Marine Corps dated 9 August 2010, a copy of which is attached

to enclosure (2).

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 28 December 2007 for improper
use of a government vehicle and was awarded a letter of
reprimand. In accordance with the Marine Corps Separation
Manual, paragraph 6105, a Navy-Marine Corps (NAVMC) form 118 (11)
counseling warning was placed in his service official OMPF
concerning the NUP. A thorough review of his OMPF held by the
Headquarters Marine Corps does not reveal any documentation
pertaining to the letter of reprimand that was awarded as a
result of the NUP. Additionally, he received an adverse FITREP
for the period covering 1 July to 28 December 2007 that states,
in part, that it was submitted due to his receipt of NUP on 28
December 2007 for violation of Article 92, Uniform Code of
Military Justice, for using a government vehicle for his personal
use.

d. The AO in enclosure (2) stated, in part, that Petitioner
admitted his misconduct to ChGeamer est use of a government
vehicle and that he accepted NUP by pleading guilty. Further, in
order to justify correction of a military or naval record, he
bears the burden to show that the alleged entry or omission in
the record was in error or unjust. Additionally, there were no
errors in the submission of the FITREP and his guilty plea was
enough to warrant an adverse report.

e. In his application, Petitioner states that he accepted
full responsibility for his actions, in that he did drive and
park a government vehicle away from his assigned place of duty.
However, his actions were not malicious in nature and the
punishment severely outweighed the crime. He stated, in part,
that after attending an “All Hands” event in San Diego,
California, he decided to stay overnight rather than make the
90 mile drive back to his recruiting station in Riverside,
California, because he had to refurn to San Diégo the following
morn#ng for a dental appointment, and that he parked the vehicle
overnight at a Department of Defense school.

f. Additionally, Petitioner submitted a letter from his
sergeant major dated 27 October 2010, addressed to the Deputy
Branch Head, Manpower Management Support Branch (MMSB) that
states, in part, that he had reviewed Petitioner's service record
and affirmed that the letter of reprimand is not included.
Further, that he was the command sergeant major at the time
Petitioner received NJP on 28 December 2007 and the only document
he provided was the counseling form page 11. He recalled that
the commanding officer wanted to personally provide the létter of
reprimand but apparently never completed the final draft. To his
knowledge, the letter of reprimand awarded at NUJP was never
delivered because he would have been the one to assist Petitioner
in the process of writing a rebuttal.

CONCLUSION:

Upon review and consideration of all the evidence of record, the
AO, the letter from Petitioner’s sergeant major, and the absence
of the letter of reprimand in his OMPF, the Board finds the

existence of an error and injustice warranting limited corrective
action. In this regard, the Board concludes that the NJP should
be removed from his record because he never received his letter
of reprimand. The FITREP covering the period from 1 July to

28 December 2007 should be removed from his official OMPF, and
his page 11 counseling warning dated 28 December 2007, should be
corrected by redacting all references regarding the NUP, since
there is no record of what form of reprimand he was to have
received as a result of his NUP. However, he was given a
counseling warning with regard to his misuse of a government
vehicle so the remainder of the counseling is correct. In view
of the above, the Board directs the following limited corrective

action.

 

RECOMMENDATION:

 

 

 

a. That Petitioner's naval record be corrected by removing
the NIP dated 28 December 2007 as well as his FITREP covering the
period from 1 July to 28 December 2007 from his official OMPF.
Further, redact from his page 11 counseling entry dated
28 December 2007 the wording “NJP of (071228) for” and “You were
found guilty and awarded a letter of reprimand which will be sent

to your OMPF”.

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 in a
confidential file maintained for such purpose, with no cross
reference being made a part of Petitioner's naval record.

d. That no further relief be granted.

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 GEORG
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.

(2). :
2 as
Executive regQror