DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100 TJR
Docket No: 5791-13
15 October 2013
From: Chairman, Board for Correction of Naval Records
TO: Secretary of the Navy
Subj: REVIEW NAVAL RECORD OF 2iigiiid
Ref: (a) 10 U.S.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 his naval record be corrected by
removing any and all derogatory material regarding the
nonjudicial punishment (NJP) imposed on 3 August 2009 from his
Official Military Personnel File (OMPF). This request includes,
but is not limited to an adverse fitness report (FITREP) for the
period from 25 June to 3 August 2009, and any administrative
remarks (Page 11) entries surrounding the NUP.
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 statues, regulations, and policies. In addition, the
Board considered the advisory opinion furnished by the Marine
Corps Military Justice Branch, Judge Advocate Division (JAM2)
dated 23 September 2013, a copy of which is provided in enclosure
NT a
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 entry
which notes that he received an NUP, which was imposed by the
“captain” company commander, for failure to obey a lawful order
by physically operating a vehicle while under the influence of
alcohol. In this regard, the punishment imposed was extra duty
and restriction for 30 days and a $1,088 forfeiture of pay, a
portion of which was suspended for six months.
d. On 8 November 2009 he received an adverse FITREP for the
period from 25 June to 3 August 2009 which referenced the
foregoing NUP.
e. An advisory opinion received from the Marine Corps
regarding Petitioner’s request to remove the NJP and FITREP
recommended relief. In this regard, the advisory opinion states,
in part, that the captain company commander exceeded the maximum
punishment authorized for imposition by an officer below the rank
of major, and as such the NJP was not conducted in accordance
with regulatory guidelines.
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 not properly conducted and the punishment
imposed was not authorized by the captain company commander, it
was improperly filed. Further, since the FITREP resulted from
the NUP, it too was improperly written and filed. As a result of
the foregoing, both the NJP and FITREP 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 3 August 2009 and the
FITREP for the period from 25 June to 3 August 2009, 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.
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.
Qrurn Brogar
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.
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