DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100 TIR:
Docket No: 3525-13
15 October 2013
From: Chairman, Board for Correction of Naval Records
To: Secretary of the Navy
Subj: REVIEW NAVAL RECORD OF 3
Ref: (a) 10 U.S.c. 1552
Encl: (1) DD Form 149 with attachments
Case summary with attachments
) Subject's naval record/CcD
Wh
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 regarding a Uniform Code of Military Justice (UCMJ)
offense, specifically, Article 117/using provoking speeches or
gestures, which is reflected in his nonjudicial punishment (NJP)
awarded on 30 August 2012.
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 opinions (AO) provided by
Headquarters Marine Corps (HOMC), copies of which are attached to
enclosure (2).
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 31 August 2012 for a UMCJU
offense, specifically, Article 80/attempts and Article 117/using
provoking speech and/or gestures. The punishment imposed was
restriction and extra duty for 14 days.
d. Petitioner asserts that the Article 117 offense is in
error since it does not apply to him or his situation because his
spouse is not subject to the UCMJ.
e. In the enclosed AOs from HOMC (Military Law Branch, Judge
Advocate Division (JAM2) dated 2 August 2013 and Manpower
Information Quality Assurance, Manpower Information System
Division (MIQ) dated 26 August 2013, it was recommended that
Petitioner's record be redacted by removing the UCMJ Article 117
(using provoking speech and/or gestures) from the record since he
was not in violation of this article.
CONCLUSION:
Upon review and consideration of all the evidence of record and
especially in light of the AOs, the Board finds the existence of
an error and injustice warranting corrective action. In this
regard, the Board concludes that the reference to Article 117
(using provoking speech and gestures) should be expunged from the
record, and that the record be corrected to reflect that he was
only found guilty of Article 80 (attempts).
In view of the above, the Board directs the following corrective
action.
RECOMMENDATION:
a. That Petitioner's naval record be corrected by removing
the UCMJ Article 117 (using provoking speech and/or gestures)
offense.
b. That any material 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 material 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. eae
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.
Executive Diyettlo
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