DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TJIR
Docket No: 3203-13
15 October 2013
From: Chairman, Board for Correction of Naval Records
To: Secretary of the Navy
j: REVIEW NAVAL RECORD OF @@titl
Ref: (a) 10 U.S.C. 1852
DD Form 149 with attachments
Case Summary
Petitioner's naval record
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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,
specifically, a unit punishment book (UPB) entry which documents
a nonjudicial punishment (NUP) dated 14 March 2002, an offense
and punishments (page 12) entry dated 14 March 2002, anda
fitness report (FITREP) for the period from 11 July 2001 to 14
March 2002. 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 27
August 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. Petitioner received NJP on 14 March 2001 for wrongfully
accepting approximately $60 to $80 for cleaning weapons in the
armory. The punishment imposed was reduction to paygrade E-4 and
a forfeiture of pay, which was suspended for six months.
d. On 19 March 2002 Petitioner appealed the NJP stating, in
part, that the punishment was disproportionate to the offense.
As a result, on 22 March 2002, the commanding officer suspended
the reduction to paygrade E-4. In this regard, the foregoing
actions were not recorded on the UPB.
e. In April 2002, Petitioner received an adverse FITREP for
the periods from 11 July 2001 to 14 March 2002 which references
the NUP and its offenses.
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 NJP, it is unclear whether the
NJP proceedings were conducted properly” 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. As a result, all adverse material referencing the NJP
should be removed from 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 partial corrective
action.
RECOMMENDATION :
a. That Petitioner's naval record be corrected by removing
and/or totally obliterating all references regarding the NJP of
14 March 2002, to include, but not limited to the UPB entry dated
14 March 2002, the page 12 entry dated 14 March 2002, and the
FITREP for the period from 11 July 2001 to 14 March 2002.
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. eonen
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.
\p Doo’
W. DEAN PHRI
Executive Di tor
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