DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TOR
Docket No: 3498-11
1 August 2011
From: Chairman, Board for Correction of Naval Records
To: Secretary of the Navy
Subs: eee
Ref: (a) 10 U.S.C. 1552
(1) DD Form 149 with attachments
{2} Case summary
(3) Subject's naval record
Bnoci:
1. Pursuant to the provisions of reference (a), Petitioner, an
enlistec member of the Marine Corps, filed enclosure (1) with
this Board requesting that his naval record be corrected by
removing all references to the nonjudicial punishment (NUP)
imposed on 16 November 2007.
2. The Board, consisting of Mr. Garst, Mr. Sproul, and Ms.
Zivnuska reviewed Petitioner's allegations of error and injustice
on 26 July 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. -In addition, the
Board considered the advisory opinion (AO) provided by the Marine
Corps Military Justice Branch, Judge Advocate Division (JAMZ )
dated 15 July 2011.
3. The Board, having reviewed ali 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 NIP on 16 November 2007 for
dereliction of duty, two specifications of failure to obey a
lawful oxder, being out of bounds, and making a false official
statement’. The punishment imposed was restriction for 30 days.
d. ‘aubsequently, Petitioner's commanding officer submitted a
letter stating, in part, that the NJP had been set aside due to
procedur: i errors, and as such all rights, privileges, and
property that were affected were restored. Nonetheless,
documentation referencing the NJP remained in the record.
e. An AO from JAM2 dated 15 July 2011, states that the NJP
and all documentation referencing it should be removed.
CONCLUSION:
Upon review and consideration of all the evidence of record, and
especially in light of the AO, the Board concludes that
Petitioner's request warrants favorable action. In this regard, —
the Board concludes that since his commanding officer set aside
the NUP, all references in his record regarding it should be
removed or obliterated.
In view of the foregoing, the Board finds the existence of an
injustice warranting the following corrective action.
RECOMMENDATION :
a. That Petitioner's naval record be corrected by totally
obliterating or removing the 16 November 2007 NUP and all
references thereto.
‘b. That any and all materials or entries inconsistent with or
relating to the Board's recommendation be corrected, removed, or
completeiy expunged from Petitioner's record and that no such
entries’r materials be added to the record in the future.
ce. 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.
A. 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 \ 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.
W. DEAN PFE
Executive Dikrec
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