DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
701 S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490
TAL
Docket No: 12631-11
8 May 2012
From: Chairman, Board for Correction of Naval Records
TO: Secretary of the Navy
Subj: REVIEW NAVAL RECORD > pene
Ref: (a) 10 U.S.C. 1552
1) DD Form 149 with attachments
2) Case summary
3) HQOMC JAM2 memo dtd 10Feb12
4) Subject's naval record (CD)
Encl:
1. Pursuant to the provisions of reference (a), Petitioner, a
former member of the Marine Corps, filed enclosure (1) with this
Board requesting the removal of all adverse material from his
Official Military Personnel File (OMPF) regarding nonjudicial
punishments (NJP) imposed on 23 July and 24 September 2009. He
further requested to be reinstated to his former rank of
corporal paygrade (E-4), to change his characterization of
discharge from general (under honorable conditions) with a
separation code of JKA1 (pattern of misconduct (no board)) to
honorable with a separation code of MBK1 (completion of
service). Finally, he impliedly requested that his narrative
reason for separation (misconduct) and RE-4 (not recommended for
retention) be changed.
2. The Board, consisting of Mr. Pfeiffer, Mr. Ivins and Ms.
Henkel, reviewed Petitioner's allegations of error and injustice
on 28 March 2012 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 enlisted in the Marine Corps on 1 June 2004.
He received NIP on 23 July 2009 for violations of Uniform Code
of Military Justice (UCMJ) Articles 86 (unauthorized absence),
92 (failure to obey a lawful order), and 112 (drunk on duty).
The punishment imposed was reduction in rank to paygrade E-3, 30
days restriction and extra duties, and a letter of reprimand. He
was also awarded a forfeiture of $1239.00, which was suspended
for six months. On 24 September 2009, the suspended portion of
the 23 July 2009 NUP sentence was vacated.
d. On 8 October 2009, he received NJP for violation of
UCM Articles 91 (insubordinate conduct), and 92 (failure to
obey a lawful order). The punishment awarded was reduction in
rank to paygrade E-2 and 45 days restriction and extra duties.
The forfeiture of $1568.00 awarded was suspended for six months.
e. On 26 January 2010, the Commander, Navy Element, U.S.
Strategic Command (USSTRATCOM) directed that he be separated
from the Marine Corps with a general (under honorable
conditions) discharge, separation code JKA1 (pattern of
misconduct), and a reentry code of RE-4 (not recommended for
reenlistment). The separation was approved and directed by the
Commanding Officer, Marine Corps Detachment, Lackland Air Force
Base, Texas.
f. An advisory opinion (AO) from the Military Justice Branch
of Headquarters Marine Corps (enclosure (3)) recommends that
Petitioner’s request be granted. In this regard the AO states,
in part, as follows: that Commanding Officer, Marine Enlisted
Element, USSTRATCOM, and the Commander, Navy Element, USSTRATCOM
lacked authority to reduce Petitioner in rank and discharge him.
The AO recommends that his request to should be granted.
CONCLUSION:
Upon review and consideration of all the evidence of record, and
especially in light of enclosure (3), the Board concludes that
Petitioner's request warrants favorable action.
RECOMMENDATION :
a. That Petitioner's naval record be corrected by removing
the NOPs dated 23 July and 8 October 2009 and reinstate his rank
2
of corporal, paygrade (E-4). That his record be further
corrected by change his discharge from general (under honorable
conditions), separation code of JKAl (pattern of misconduct (no
board)) to honorable with a separation code of MBK1 (completion
of service), his narrative reason for separation (misconduct) be
changed to “completion of service, and his RE-4 reentry code be
changed to RE-1 (recommended for retention).
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 J. 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.
ey Stax
W. DEAN 1
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