DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TUR
Docket No: 2485-13
15 October 2013
From: Chairman, Board for Correction of Naval Records
To: Secretary of the Navy
Subj :
Ref: (a) 10 U.S.C. 1552
Encl: (1) DD Form 149 with attachments
(2) Case Summary
(3) Petitioner's naval record
(4) HOMC MJB JAD (JAM2) ltr dtd 31JUL13
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 incomplete and inaccurate derogatory material dated 10
and 27 December 2004. Presumably, this request includes, but is
not limited to any and all other references surrounding the
circumstances of this material. ©
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 statutes, regulations, and policies. In addition, the
board considered the advisory opinion furnished by the Marine
Corps Military Justice Branch, Judge Advocate Division dated 31
July 2013, a copy of which is provided as enclosure (4).
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. The record contains a Marine Corps Total Force System
(MCTFS) Legal Action 119 Remarks entry dated 10 December 2004
which states, in effect, that Petitioner received nonjudicial
punishment (NJP) for unspecified offense(s).
d. Petitioner’s record contains an administrative remarks
(page 11) entry dated 27 December 2004 which reflects that he was
counselled for deficiencies in his performance and lack of
integrity which resulted in the imposition of an NUP for
falsification of his rifle score.
e. Petitioner’s record does not contain a unit punishment
book entry or an offense and punishment entry. In this regard,
these documents are required for the proper recording and/or
filing of NJUPs.
f. An advisory opinion, enclosure (4), received from the
Marine Corps regarding Petitioner’s request to remove the
incomplete documentation recommended relief. In this regard, the
advisory opinion states, in part, that “due to the command’s
failure to properly document the NUP, it is unclear whether the
NJP proceedings were conducted properly or what result was
intended by the command” and the command had the responsibility
to ensure that legal proceedings were properly and accurately
conducted and documented, but failed to do so in this case. Asa
result, all adverse material referencing the NJP should be
removed from the MCTFS and the Official Military Personnel File
(OMPF) .
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 documentation, as it appears in the record, is
incomplete and/or insufficient as written and filed, all
references 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 all references regarding the NUP of 4
December 2002, to include, but not limited to the MCTFS Legal
Action 119 Remarks entry dated 10 December 2004 and the page 11
entry dated 27 December 2004.
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.
ROBERT D. ZSALMAN BRIAN J. ae
Recorder Acting Recorder
S. 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.
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