DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORDS
7O1t S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490

 

TUR
Docket No: 4197-14
18 February 2015

From: Chairman, Board for Correction of Naval Records

Te: Secretary of the Navy
Ref: (a) 410 U.8.C. 1552

Encl: (1) DD Form 149 with attachments
(2) Case Summary with attachments
(3) Petitioner's naval record/cD

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 nonjudicial punishment (NJP) documentation dated 14
March and 22 December 2012, and administrative remark entries
(Page 11) dated 22 March 2012 and 2 October 2013. Presumably,
this request includes, but is not limited to any and all other
references surrounding the circumstances of the foregoing
material from his Official Military Personnel File (OMPF) ,

Electronic Service Record (ESR), and the Marine Corps Total Force
System (MCTFS).

meee O20, COS sting of

, reviewed Petitioner's allegations of error and injustice
on 10 February 2015, and, pursuant to its regulations, determined
that the partial 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 furnished by
the Marine Corps Military Personnel Law Branch (JPL), Judge
Advocate Division and Manpower Information Quality Assurance
(MIQ), Manpower Information Systems Division, copies of which are
attached with 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.
TUR
Docket No: 4197-14

b. Enclosure (1) was filed in a timely manner.

c. On 14 March 2012, Petitioner received NJP for failure to
obey a lawful order, making a false official statement, and
wrongful cohabitation. The punishment imposed was reduction to
paygrade E-3, a $1,980 forfeiture of pay, and extra duty for 60
days. He also received a Page 11 entry which reflects that he
was counselled regarding the NJP. On 11 December 2012, he
received another NJP for failure to obey a lawful order and
driving under the influence of alcohol. The punishment imposed
was reduction to paygrade E-2, a $1,670 forfeiture of pay, and
extra duty for 60 days.

d. On 2 October 2013, Petitioner was counselled (a Page 11
placed in his record) regarding a waiver of his promotion
restriction which was the result of his 11 December 2012, NUP.

e. Regulatory guidelines regarding authorized punishments at
NJP state, in part, that when awarding extra duty consideration
must be given to include fatigue or other duties and should not
be for more than 45 consecutive days, and not “normally” extend
more than two hours per day. These guidelines also prohibit
performing extra duty on Sundays, except in limited
circumstances.

£f. In spite of the foregoing regulatory guidelines,
Petitioner was awarded 60 days extra duty as punishment during
both of his NUP hearings. However, Petitioner provided
decumentation which reflects that on at least one occasion
(resulting from punishment awarded at NJP on 14 March 2012) he
performed a total of 60 nonconsecutive days of extra duty over a
period spanning 78 days. This documentation further reflects
that he performed extra duty on Sundays and for periods exceeding
more than two hours per day.

g. Both advisory opinions, enclosure (2), received from
Headquarters Marine Corps (JPL and MIQ) regarding Petitioner’s
request to remove the NJPs and Page 11 entries recommend his
request be denied because these documents were properly,
factually, accurately, and legally written and filed. However,
the AO from JPL recommends partial relief for Petitioner’s
disproportionate punishment, specifically, 60 days of extra duty
awarded at both NJP hearings. In this regard, the AO recommends

setting aside and/or reimbursement of the forfeitures awarded at
the NJPs.
TIR
Docket No: 4197-14

CONCLUSION:

Upon review and consideration of all the evidence of record, the
Board concludes that Petitioner's request warrants partial
favorable action.

In regards to the foregoing, the Board substantially concurs with
the comments contained in the advisory opinions and concludes
that there was no error or injustice regarding the imposition of
the NUPs or the insertion of the Page 11 entries in the record
since these documents were properly documented. In accordance
with the foregoing, the NJPs and Page 11 entries should remain in
the record. However, the Board further concludes that because
Petitioner’s punishment was disproportionate to the offenses and
he performed extra duty which exceeded regulatory guidelines,
reimbursement of the forfeitures awarded at the NUPs is
warranted. In this regard, the record should be corrected to
reflect that the forfeitures, at both NUP hearings, were set

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
forfeitures awarded as punishment at the 14 March 2012 NUP and
the 11 December 2012 NuP.

b. That Petitioner's naval record be corrected to reflect
that the total forfeitures awarded at both the 14 March 2012 and
ll December 2012 NJPs, specifically, $3,650 were credited to his
financial account.

¢. 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.

d. That no further relief be granted.
TJR
Docket No: 4197-14

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.

T. J. REED
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.

  

ROBERT J. O'NEILL
Executive Director