DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TOR
Docket No: 319-11
14 Bpeil 2013
From: Chairman, Board for Correction of Naval Records
To: Secretary of the Navy
Subj: REVIEW NAVAL RECORD OF ns
Ref: (jai 10 0.8.0. i652
Encl: (1) DD Form 149 with attachments
(2) Case Summary
(3) Petitioner's naval record
1. Pursuant to the provisions of reference (a), Petitioner, an
enlisted member of the Marine Corps, filed enclosure (1) with
this Board requesting that his naval record be corrected by
removing two Article 134 offenses listed on his unit punishment
book (UPB) as a result of nonjudicial punishment (NUP) he
received on 20 August 2009. This request includes any
administrative remarks (page 11) entries, as well as any and all
references to the Article 134 offenses.
Poe The Board, consisting of Messrs. Blanchard, Genteman, and
Sproul, reviewed Petitioner's allegations of error and injustice
on 12 April 2011 and, pursuant to its regulations, a 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. In
addition, the Board considered the advisory opinion furnished by
the Marine Corps Military Justice Branch, Judge Advocate Division
dated 18 February 2011, a copy of which is provided in enclosure
(1) .
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 21 August 2009 for two
specifications of failure to obey a lawful order by engaging in
an inappropriate relationship with a perspective recruit
applicant and wrongfully using a government cellular telephone
for personal calls. He was also charged with two Article 134
violations, specifically, adultery by wrongfully having sexual
intercourse with a woman that was not his wife and wrongfully
communicating a threat to a perspective recruit applicant. The
punishment imposed was a $2,000 forfeiture of pay.
d. Petitioner’s record contains an administrative remarks
entry dated 21 August 2009 which reflects that he was counselled
regarding the offenses for which he received NUP. However, the
two specifications of Article 134 were redacted/crossed out since
he was found not guilty of these offenses. The entry was signed
by both the Petitioner and his commanding officer.
e. An advisory opinion received from the Marine Corps
regarding Petitioner’s request to remove the two Article 134
offenses recommended partial relief. In this regard, the
advisory opinion states, in part, that the validity of the
redacted/crossed out administrative remarks entry had been
confirmed and as such those offenses should be removed from the
record. The advisory opinion further recommends that the NJP not
be removed from the record because the two Article 92 violations
were legally valid as written and filed.
CONCLUSION:
Upon review and consideration of all the evidence or record, the
Board concludes that Petitioner's request warrants partial
favorable action. In this regard, the Board substantially
concurs with the comments contained in the advisory opinion and
concludes that since the administrative remarks entry was
validated as amended, the two Article 134 offenses should be
removed from the record. However, the Board further concludes
that since the NUP was properly documented in the record with two
specifications of Article 92 offenses, it should remain as a part
of his record.
In view of the foregoing, the Board finds the existence of an
injustice warranting the following partial corrective action.
RECOMMENDATION :
a. That Petitioner's naval record be corrected by removing
and/or totally obliterating all references regarding the two
specifications of Article 134 offenses, specifically, adultery by
wrongfully having sexual intercourse with a woman that was not
his wife and wrongfully communicating a threat to a perspective
recruit applicant.
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.
d. That no further relief be granted.
4. 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 JW 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.
Executive Dyyerto
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