DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100 TUR
Docket No: 1593-13
15 October 2013
From: Chairman, Board for Correction of Naval Records
TOs secretary of the Navy
Subj: REVIEW NAVAL RECORD Of
ROE pea
Ref: (a) 10 UsSsC. 1552
(b) HOMC MFCO 5355.1
(c) SECNAVINST 5300.28D
(d) Federal Register, Vol. 76, No. 40
Enel: (1) DD Form 149 with attachments
(2) Case summary :
(3) HOMC MJB JAD (JAM2) ltr dtd 27AUG13
(4) Petitioner's naval record/CD
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 any and all derogatory material regarding the
nonjudicial punishment (NJP) imposed on 1 June 2011 from his
Official Military Personnel File (OMPF). This request includes,
but is not limited to an administrative remarks (Page 11) entry
also dated lJune 2011. Enclosures (2) through (4) apply.
2. The Board, consisting of Messrs. Exnicios, Pfeiffer, and
Whalen reviewed Petitioner's allegations of error and injustice
on 8 October 2013 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 statues, regulations, and policies. In addition, the
Board considered the advisory opinion furnished by the Marine
Corps Military Justice Branch, Judge Advocate Division (JAM2)
dated 27 August 2013, a copy of which is provided in enclosure
(3).
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’s OMPF contains a unit punishment book entry
which notes that he received an NJP on 1 June 2011 for wrongful
use of Spice, a controlled substance as reflected in references
(b) through (d). The record further reflects a page 11 which
notes that he received counselling regarding the imposition of
this NUP.
d. Correspondence dated 29 January 2012 from Petitioner’s
present commanding officer states, in part, that the NJP was
improperly convened and that he was wrongfully accused of using a
controlled substance, specifically, Spice. As such the NJP was
set aside. In this regard, Petitioner asserts that the NJP was
set aside because “Spice” is not a controlled substance that is
prohibited by Navy/Marine Corps regulations, and as such he was
not in violation of Article 112A of the Uniform Code of Military
Justice (UCMJ).
e. Enclosure (3), an advisory opinion regarding Petitioner's
request to remove the NJP and page 11 recommended relief. The
advisory opinion states, in part, that the commander who imposed
punishment or his/her successor may set aside punishment. In
this regard, Petitioner’s present commanding officer set aside
the NJP, and it has been removed from the Marine Corps Total
Force System (MCTFS) and should also be removed from his OMPF.
CONCLUSION:
Upon review and consideration of all the evidence of record, the
Board concludes that Petitioner's request warrants favorable
action. The Board initially notes that Petitioner’s assertion
that Spice is not a controlled substance and its use is not
prohibited by Navy/Marine Corps regulations is without merit. In
this regard, references (b) through (d) apply. However, the
Board substantially concurs with the comments contained in the
advisory opinion and concludes that since the NJP was set aside
and removed from the MCTFS, both it and the page 11 should be
removed from Petitioner’s OMPF.
In view of the foregoing, the Board finds the existence of an
error and injustice warranting the following corrective action.
RECOMMENDATION:
a. That Petitioner's naval record be corrected by removing
and/or totally obliterating the NJP dated 1 June 2011 and the
page 11 administrative remarks entry also dated 1 June 2011, as
well as 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 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.
Calas, Hon
ROBERT D. ZSALMAN BRIAN J. GEORG
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. ates
Executive Ditecso
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