DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
701 S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490
JSR
Docket No: 5953-12
3 October 2012
From: Chairman, Board for Correction of Naval Records
To: Secretary of the Navy
| eT
REVIEW OF NA |
Ref: (a) 10 U.S.C. 1552
Encl: (1) DD Form 149 dtd 30 May 12 w/attachment
(2) HOMC MIQ memo dtd 20 Jul 12
(3) Subject's naval record
1. Pursuant to the provisions of reference (a), Subject,
hereinafter referred to as Petitioner, filed enclosure (1) with
this Board requesting, in effect, that the applicable naval
record be corrected by removing the service record page 11
(“Administrative Remarks (1070)") entry dated 30 March 2006, a
copy of which is at Tab A.
2. The Board, consisting of Messrs. Gorenflo, Grover and
Midboe, reviewed Petitioner's allegations of error and injustice
on 3 October 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. The contested entry includes the following:
Counseled this date concerning the following
deficiency on 28 Mar 2006 for violations of
the UCM [Uniform Code of Military Justice],
Specifically: Violf[ation] of Art[icle] 86:
Absence without leave. You had a scheculed
[sic] appointment at the Dental Clinic at
Camp Foster but failed to report. You were
asked why you missed your scheduled appoint -
ment and you stated, “I forgot.”.
c. Petitioner contends the entry is unjust because the
reason he forgot his dental appointment was that he was “focused
on completing the mission at work.” He also asserts that his
staff noncommissioned officer in charge ordered him not to make
a rebuttal.
d. In-correspondence attached as enclosure (2), the
Headquarters Marine Corps (HQMC) office having cognizance over
the subject matter of Petitioner's case has commented to the
effect that the contested entry is proper, except for its
reference to violations of the UCMJ, which are not deficiencies
and must be resolved by means of disciplinary action. This
advisory opinion recommends modifying the entry by deleting
“violations of the UCMJ, Specifically: Viol of Art 86: Absence
without leave.”
CONCLUSION:
Upon review and consideration of all the evidence of record, and
especially in light of the contents of enclosure (2), the Board
finds the existence of an error warranting partial relief,
specifically, modification of the contested entry by removal of
reference to a charge under the UCMJ. The Board notes that the
entry will not read correctly unless the word “for,” which
appears before the language the advisory opinion recommends
removing, is removed as well. The Board finds Petitioner’s
focus on his work, while commendable, did not excuse his having
forgotten his appointment; and it is unable to accept his
unsupported assertion that he was ordered not to submit a
rebuttal. The Board observes that he may submit a rebuttal to
HQOMC (MMSB) for file in his record with the entry at issue. In
view of the above, the Board directs the following limited
corrective action:
RECOMMENDATION:
a. That Petitioner's naval record be corrected by removing
the following from the service record page 11 (“Administrative
Remarks (1070)”) entry dated 30 March 2006: “for violations of
the UCM, Specifically: Viol of Art 86: Absence without leave.”
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 ina
confidential file maintained for such purpose, with no cross
reference being made a part of Petitioner's naval record.
d. That the remainder of Petitioner’s request be denied.
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.
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ROBERT D. ZSALMAN JONATHAN S. RUSKIN
Recorder Acting Recorder
S. Pursuant to the delegation of authority set out in Section
6(e) of the revised Procedures of the Board for Cerrection of
Naval Records (32 Code of Federal Regulations, 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 eat 2) Zan
Fa_w. DEAN PFEIFFER
Executive Director
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