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NAVY | BCNR | CY2012 | 00078-12
Original file (00078-12.pdf) Auto-classification: Approved
DEPARTMENT OF THE NAVY
BOARD FOR GORRECTION OF NAVAL RECORDS

701 S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490

 

TUR
. Docket No: 78-12
24 January 2012

 

 

 

From: Chairman, Board for Correction of Naval Records
Los Secretary of the Navy

Subj: REVIEW NAVAL RECORD * i
Ref: (a) 100U.S.Cc. 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
enlisted 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 12 June 2009.

2. The Board, consisting of Messrs. Exnicios, Pfeiffer, and
Zsalman, reviewed Petitioner's allegations of error and injustice
on 19 January 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. In addition, the
Board considered previous advisory opinions (AOs) provided by the

Marine Corps Military Justice Branch, Judge Advocate Division
(JAM2) .

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. On 12 June 2009 Petitioner received NUP for two
specifications of failure to obey a lawful order (i.e., unduly
familiar personal relationship between an officer and enlisted
member; and allowing a private first class to drive while under
the influence of alcohol (DUI)). The punishment imposed was
reduction to paygrade E-4, restriction and extra duty for 30
days, and a $1,063 forfeiture of pay.

 

d. Subsequently, on 18 July 2011, Petitioner’s commanding
officer, who imposed the NUP, submitted a letter setting it
aside. The letter stated, in part, that the rationale for
setting aside the NUP was due to a clear injustice on both
offenses because the Marines involved in the case were both
enlisted and did respect rank and grade as stated in Navy
regulations regarding personal relationships between officers and
enlisted Marines. Also, the private first class was acquitted of
all DUI charges and this evidence could not have been furnished
at the time the NJP was imposed. As a result of this set aside
action, all rights, privileges, and property that were affected
were restored. Nonetheless, documentation referencing the NJP
remains in the record.

e. Previous AOs from the Marine Corps have concurred with the
commanding officer who imposed the NUP and stated, in part, 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 letter from Petitioner’s commanding
officer which directed that the NUP be set aside and that all
references in his record regarding it be removed, the Board
concludes that Petitioner's request warrants favorable action.

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 12 June 2009 NUJP 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
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 he 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 eae) Aron
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 °Y the Board on
behalf of the Secretary of the Navy.

WwWoo¥

W. DEAN P
Executive DA Ear

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