DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
701 S, COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490
TIR
Docket No: 1942-13
9 May 2013
From: Chairman, Board for Correction of Naval Records
Ge: Secretary of the Navy
Subj: REVIEW NAVAL RECORD OF
Ref; (a) 10 U.S -¢. F552
Encl: (1) DD Form 149 with attachments
(2) Case summary
(3) Petitioner'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 any and all derogatory material regarding the
nonjudicial punishment (NUP) imposed on 1 April 2010 from his
official military personnel file (OMPF). This request includes,
but is not limited to the administrative remarks (Page 11)
entries dated 1 and 7 April 2010.
2. The Board, consisting of Ms. Barrow, Mr. Blanchard, and Ms.
Wilcher, reviewed Petitioner's allegations of error and injustice
on 7 May 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. Enclosures (2)
and (3) apply. In addition, the Board considered the advisory
opinion furnished by the Marine Corps Military Justice Branch,
Judge Advocate Division (JAM2) dated 23 April 2013, a copy of
which is provided in enclosure (1).
3. The Board, having reviewed all the facts of record pertaining
to Petitioner's allegations of error and injustice finds as
£ollows:
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 a “company level” NUP for failure to
obey a lawful order by consuming alcohol as a minor/underage
drinking. However, the punishment imposed was restriction and
extra duty for 45 days and a suspended $378 forfeiture of pay,
all of which is “battalion level punishment.” The record further
reflects two page 11 entries dated 1 and 7 April which note that
he received counselling regarding the imposition of the foregoing
NUP.
ad. On 26 November 2012 Petitioner’s present commanding
officer, after reviewing the punishment imposed at the foregoing
NJP, requested that it be expunged from the record because of the
erroneously awarded “battalion level punishment” at a “company
level” NUP.
e. An advisory opinion received from the Marine Corps
regarding Petitioner’s request to remove the NUP and page 11
entries recommended relief. In this regard, the advisory opinion
stated, in part, that because the punishment imposed exceeded the
maximum punishment authorized by an officer below the rank of
major, the record should be corrected by removing the NJP and all
documentation surrounding its imposition.
CONCLUSION :
Upon review and consideration of all the evidence or record, the
Board concludes that Petitioner's request warrants favorable
action. In this regard, the Board substantially concurs with the
comments contained in the advisory opinion and concludes that
since the NUP was improperly imposed and the page 11 entries were
subsequently improperly written and filed based solely on the
NIP, all documentation should be removed from the record.
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 NUP dated 1 April 2010 and the
page 11 administrative remarks entries dated 1 and 7 April 2010,
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.
Cron. Dror
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.
i
Executive Di
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