DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TIR
Docket No: 1610-11
3 March 2011
From: Chairman, Board for Correction of Naval Records
TOs Secretary of the Navy
Sub}: REVIEW NAVAL RECORD OF eee
Ref: (a) LO U.82€. Le52
Encl: (1) DD Form 149 with attachments
(2) Case summary with attachments
(3) Subject's naval record
1. Pursuant to the provisions of reference (a), BDetLbionet, a
enlisted member of the Marine Corps, filed enclosure (1) with
this Board requesting that his record be corrected by removing
derogatory material regarding his conviction by special court-
martial (SPCM) of 23 April 2009.
2. The Board, consisting of Mr. Green, Mr. Genteman, and Ms.
McCormick, reviewed Petitioner's allegations of error and
injustice on 1 March 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.
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 was tried by SPCM on 23 April 2009 of wrongful
use of cocaine during the period from 22 November to 1 December
2008). However, he pled, and the court found him, not guilty of
the charge.
d. Regulations state, in part, that if a Marine is found not
guilty of all charges at a court-martial, the documentation
should not be retained in the record/official military personnel
file (OMPF).
CONCLUSION:
“
+
Upon review and consideration of all the evidence of record the
Board finds the existence of an injustice warranting corrective
action. In this regard, the Board concludes that in accordance
with regulatory guidelines which state that if a servicemember is
found not guilty of all charges ata court-martial, any and all
documentation referencing it should be removed. Since Petitioner
was found not guilty of the charge of which he was tried, the
documentation should be expunged from his record.
In view of the above, the Board directs the following corrective
action.
RECOMMENDATION :
a. That Petitioner's naval record be corrected by removing
any and all references to and documentation regarding his trial
by SPCM of 23 April 2009. This includes, but is not limited to
the offense for which he was tried, the plea, and the convening
authority’s action dated 13 May 2009.
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.
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 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.
\a oat
W. DEAN PF
Executive or
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