DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
701 S,. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490
TUR
Docket No: 2713-13
9 May 2013
From: Chairman, Board for Correction of Naval Records
TO: Secretary of the Navy
Subj:
REVIEW NAVAL RECORD OF 4
2 hl as
-.
Ref: (a) 10 U0.8.C. 1552
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 her naval record be corrected by
removing any and all derogatory material regarding the
nonjudicial punishment (NJP) imposed on 27 July 2005 from her
official military personnel file (OMPF). This request includes,
but is not limited to any and all administrative remarks (Page
11) entries.
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, a 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 (30) apply. In addition, the Board considered the advisory
opinion furnished by the Marine Corps Judge Advocate Research and
Civil Law Branch (JAR7) dated 7 February 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
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 (UPB)
entry which notes that on 27 July 2007 she received an NUP for
attempted fraternization by allowing a man, not her husband, to
enter her bedroom and lay in bed with her and fraternization as
evidenced by her fraternizing with a lance corporal. The
punishment imposed is not reflected on the UPB entry.
d. The record reflects that the final disposition of the
foregoing NJP was imposed/approved/signed by an “acting”
regimental commander. In this regard, regulations state in part,
that “acting commanders do not have the authority to impose NJP
solely by virtue of their acting status.” With that being said,
the acting regimental commander was not authorized to impose this
NJP.
e. An advisory opinion received from the Marine Corps
regarding Petitioner's request to remove the NUP, in essence,
recommended relief. In this regard, the advisory opinion stated,
in part, that the authority to impose NJP cannot be delegated
unless by specific authorization of the Secretary of the Navy,
and that “acting” commanders do not have authority to impose NJP
solely by virtue of their acting status.
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 imposed by an unauthorized officer it 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 NJP dated 27 July 2007 from the
OMPF, 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.
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