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DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
Docket No: 11764-10
9 December 2010
From: Chairman, Board for Correction of Naval Records
To Secretary of the Navy
Subj: REVIEW_OF NAVAL RECORD ICO pe eee
Ref: fa) 10 U.S.C, 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, an
active duty enlisted member of the Marine Corps, filed enclosure
(1) with this Board requesting the removal of a NAVMC 118 (13)
regarding a summary court-martial (SCM) conviction on 8 December
2008 from his Official Military Personnel File (OMPF).
2. The Board, consisting of Mr. a a °
Mr, QED weviewed Petitioner's a legations of error and
injustice on 7 December 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. On 8 December 2008, Petitioner was convicted by SCM of
conspiracy to haze. He was sentenced to a reduction in paygrade,
confinement, and a forfeiture of pay. The sentence was approved
on 8 December 2008. However, with his application, he submits a
supplemental convening authority action dated 8 January 2009,
stating that the actions taken on 8 December 2008 were withdrawn.
Further, that the findings of guilty and the sentence were
disapproved, and that his rank, rights, and privileges wer
restored.
c. An advisory opinion furnished by the Headquarters Marine
Corps, dated 23 November 2010, States, in part, that im order to
justify correction of a military or naval record, Petitioner
bears the burden to show to the satisfaction of the Board, or it
must otherwise satisfactorily appear, that the alleged entry or
omission in the record was in error or unjust. In this case, the
advisory states, in part, that he has met the burden for relief.
The convening authority chose to disapprove the findings and
sentence. As a result, the SCM became a nullity and has had no
effect on his career progression as indicated by his promotion to
sergeant in 2010. Finally, ther@is no legat’ justificatién for
maintginings thes NAVMC 118 (13) reporting the SCM conviction or
supplemental convening authority’s action in this OMPF.
CONCLUSION :
Upon review and consideration of all the evidence of record, and
especially in light of the advisory opinion from Headquarters
Marine Corps, the Board concludes that Petitioner's request
warrants favorable action in the form of relief.
After careful and conscientious consideration of the entire
record, the Board concludes that Petitioner's NAVMC 118 (13) and
supplemental convening authority’s action dated 8 January 2009,
regarding the SCM conviction on 8 December 2008, be removed from
his OMPF. Ce owe PF gar ppt
In view af the above, the Board recommends the following
corrective action.
RECOMMENDATION:
a. That Petitioner's NAVMC 118 (13) regarding the SCM
conviction on 8 December 2008 and supplemental convening
authority's action letter dated 8 January 2009, be removed from
his official record, along with all associated documentation.
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 direct to be removed from Petitioner's
naval record be returned to this 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.
Sear) Hog
ROBERT D. 4SALMAN BRIAN JY 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.
be) WLam!
W. DEAN PFE ]
Executive Direc
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