DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TJR
Docket No: 5400-13
15 October 2013
From: Chairman, Board for Correction of Naval Records
To: Secretary of the Navy
Subj: REVIEW NAVAL RECORD oF ie
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Encl: (1) DD Form 149 with attachments
(2) Case Summary
(3) Petitioner's naval record
(4) HOMC MJB JAD (JAM2) ltr dtd 12SEP13
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 a Unit Punishment Book (UPB) entry dated 23 January
2003. 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 Headquarters
Marine Corps Military Justice Branch, Judge Advocate Division,
dated 12 September 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 filé€d in a timely manner.
c. Petitioner’s record contains an administrative remarks
(page 11) entry dated 31 December 2002 which reflects that he was
restricted from promotion to lance corporal as a result of a
pending nonjudicial punishment (NUP) for wrongfully consuming
alcohol while on a liberty risk program and wrongfully consuming
alcohol beverages while under the legal drinking age of 21.
d. Petitioner received NJP on 23 January 2003 for two
specifications of failure to obey a lawful order. The UPB entry
for these offenses were reflected on page two and read, in part,
as follows: PFC H... did violate a lawful order by wrongfully
consuming alcohol while on liberty risk program; and PFC H... did
wrongfully consume alcohol beverages while under the legal
drinking age of 21.
e. An advisory opinion, enclosure (4), received from the
Marine Corps regarding Petitioner’s request to remove the
inaccurate 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 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 NUP
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
inaccurate 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
23 January 2003, to include, but not limited to the UPB entry
dated 23 January 2003 and the page 11 entry dated 31 December
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.
ec. 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.
Biren Prongn
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.
\
W. DEAN pP F
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