DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORDS
701 S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490

 

Docket No: 1815-13
18 June 2013

From: Chairman, Board for Correction of Naval Records

Tor Secretary of the Navy

Subj: REVIEW NAVAL RECORD OF @jigégil

Ref: (a) i16°U.8.6., 1552

 

(1) BCNR case summary with attachments
(2) Fraternization regulations

(3) HOMC (JAM2) Advisory Opinion

(4) MCM, Part V (excerpt)

1. Pursuant to the provisions of reference (a), Petitioner, a
member of the Marine Corps, filed enclosure (1) with this Board
requesting that his record be corrected by removing derogatory
material, specifically, the nonjudicial punishment (NJP) imposed
on 12 April 2009.

2. The Board, consisting of Ms. A. Lapinski, Mr. W. Dean
Pfeiffer, and Mr. E. Vogt, reviewed Petitioner's allegations of
error and injustice on 11 June 2013 and, pursuant to its
regulations, determined that no corrective action 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 provided by Headquarters
Marine Corps, Military Justice Branch, Judge Advocate Division
(JAM2) dated 23 May 2013, which is attached as 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) reflects that Petitioner, while embarked
upon USS ESSEX (LHD 2), received NJP on 12 April 2009 for two
specifications of Article 92, failure to obey a lawful order.
Specifically, the order was an alleged violation of OPNAVINST
5370.2C (Navy Fraternization Policy) for fraternizing with two
junior female Sailors who were serving in paygrade E-4. The
punishment imposed was restriction for 45 days and a $1,972.95
forfeiture of pay. During NUP proceedings Petitioner admitted
his guilt to both specifications and never appealed the
punishment he received. In January 2013 he submitted an
application to this Board requesting removal of the NJP stating
that since he was not allowed to request a court-martial due to
the fact that he was embarked aboard a ship, he was denied due
process of law.

c. Enclosure (2) sets forth the directives regarding
fraternization that are cited, in part, as “Article 134, UCM; U.
S. Navy Regulations 1165 (applies to both Navy and Marine Corps) ;
OPNAVINST 5370.2C (applies only to Navy); Marine Corps Manual
1100.4 (applies only to Marines) .”

dad. Enclosure (4) is an excerpt from the Manual for Courts-
Martial (MCM), Part V, Effects of Errors, which states, in part,
that “Failure to comply with any of the procedural provisions of
this Manual shall not invalidate a punishment imposed under
Article 15, unless the error materially prejudiced a substantial
right of the servicemember on whom the punishment was imposed.”

e. Enclosure (3) is an advisory opinion from Headquarters
Marine Corps recommending that the NUP be removed from
Petitioner’s record due to the fact that he was punished for
violating an order that did not apply to him. The advisory
rejected Petitioner’s argument that he was denied due process
because he could not demand trial by court-martial. The advisory
states that all personnel embarked aboard naval vessels cannot
demand trial by court-martial and must accept NJP. However, the
advisory opinion does recommend relief pointing out that
OPNAVINST 5370.2C is the “Navy Fraternization Policy” and applies
only to Navy personnel. The advisory opinion further states that
the correct fraternization provision that applies to Petitioner
is to be found in U. S. Navy Regulations, Paragraph 1165, which
covers both Navy and Marine Corps personnel. The advisory
opinion concludes that he received NJP for violating OPNAVINST
5370.2C, an “order he did not have a duty to obey.”

CONCLUSION:

The Board concurs with the comments and conclusion of the Marine
Corps AO that Petitioner was not denied due process of law on the
grounds that he was not allowed to demand trial by court-martial.
Part V of the MCM as well as JAG Instruction 5800 7E and Article
15 of the UCMJ clearly establish that Navy and Marine Corps
service members who are attached to or embarked in a vessel have
no right to refuse NJP and demand trial by court-martial.
However the Board cannot concur with the conclusion of the AO
that since Petitioner was charged and found guilty of violating
the fraternalization policy of OPNAVINST 5370.2C which only
applies to Navy Personnel and not Paragraph 1165 of Navy
regulations which applies to both Navy and Marine Corps personnel
he is entitled to full relief. Instead the Board relies on the
express language of Part V of the MCM that states a procedural
error will not be a basis for invalidating NJP proceedings unless
the error materially prejudiced a substantial right of the
service member. After a careful review of all the facts and
circumstances the Board concludes that none of Petitioner's
rights, either substantive or procedural were materially
prejudiced by charging him with a violation of the
fraternalization policy of OPNAVINST 5370.2C rather than
Paragraph 1165 of Navy Regulations. Substantively the basic
proscriptions against fraternatalization set out in OPNAVINST
5370.2C are virtually the same as those contained in Paragraph
1165 of Navy Regulations. Moreover the particular misconduct
with which Petitioner was charged is unlawful under the
provisions of both these authorities. Simply put the essential
elements of his offenses remained the same and the outcome of
Petitioner’s NJP would not have been any different, had he been
charged under Paragraph 1165 of Navy Regulations. In this regard
it is important to note that Petitioner freely admitted to
committing the acts he was charged with and after punishment was
imposed he chose not to appeal. Regarding Petitioner’s
procedural rights, prior to NUP proceedings he was informed of
the charges against him, the basis for the charges and his right
to have witnesses appear during NJP proceedings for the purpose
of making statements on his behalf. He was also advised that he
could consult with a military lawyer prior to the commencement of
NJP proceedings. These are the same procedures that would have
been followed had Petitioner been charged under Paragraph 1165 of
Navy Regulations.

The Board therefore concludes that the administrative
irregularity in this case was harmless error and cannot serve as
the basis for removing an otherwise valid NUP from Petitioner’s
record. Finally the Board would like to point out that NJP by
its very nature is an informal administrative forum that empowers
commanding officers to ensure good order and discipline by
disposing of less serious offenses without resorting to the far
more legally demanding venue of court-martial proceedings where
the service member is exposed to the potential penalties of a
substantial period of confinement, a punitive discharge and the
stigma of a federal conviction.
RECOMMENDATION :

a. That Petitioner's request for removal of the NUP imposed
on 12 April 2009 be denied.

4. 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.

une
ROBERT D. 4SALMAN BRIAN as

Recorder Acting Recorder
5. The foregoing report of the Board is submitted for your review

and action.
.
Lad

W. DEAN PFE F
Executive Di

 

Reviewed ja oved: 7 / 3

nd ap
OBERT L. WOODS
Ae xstant General Counsel