DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
701 S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490
TUR
Docket No: 5273-14
18 February 2015
From: Chairman, Board for Correction of Naval Records
To: Secretary of the Navy
Ref: (a) 10 U.S.C. 1552
Encl: (1) DD Form 149 with attachments
(2) Case Summary with attachments
(3) Petitioner's naval record/cbD
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 nonjudicial punishment (NJP) dated 28 June 1999, and
inaccurate derogatory material referencing assignment to weight
control. 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) .
Zoic Board, consisting of SS I eS
GM, eeviewed Petitioner's a legations 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.
TJIR
Docket No: 5273-14
b. Enclosure (1) was filed ina timely manner.
c. The record contains a MCTFS entry which states, in effect,
that Petitioner was assigned to weight control on 21 April 1998,
and removed from it on 17 July 2000. However, the record does
not contain an administrative remarks entry (Page 11), which
would have been the basis for such an entry in the MCTFS.
d. On 28 June 1999, Petitioner received NUP for disrespect,
communicating a threat, and assault. The punishment imposed was
reduction to paygrade E-2, restriction and extra duty for 15
days, and a suspended forfeiture of pay. Nonetheless, on 1
November 1999, the commanding officer restored Petitioner’s date
of rank for paygrade to E-3 to 1 February 1988, with an effective
date of 28 June 1999. However, this action negated the reduction
to paygrade E-2 only.
e. Petitioner’s request for removal of the NUP is based
solely on his assertion that the restoration to paygrade E-3 is
evidence that the NUP was set aside, and that it only remains in
his record as an administrative oversight.
f. Both advisory opinions, enclosure (2), received from
Headquarters Marine Corps (JPL and MIQ) regarding Petitioner’s
request to remove the NUP recommend his request be denied because
the NJP was properly, factually, accurately, and legally written
and filed, and his request for removal of the documentation is
untimely. The AOs also note that the commanding officer only
restored Petitioner’s paygrade and “did not” set aside the NUP.
g. An AO from JPL recommends Petitioner's request for removal
of the entry regarding weight control in his MCTFS be granted
because there is no Page 11 in his record to support the
assignment to weight control or counselling for it, and the
command failed to properly comply with weight control guidelines,
had Petitioner been assigned to weight control. With that being
said, the entry should be removed from the MCTFS.
CONCLUSION:
Upon review and consideration of all the evidence of record, the
Board concludes that Petitioner's request warrants partial
favorable action.
TJIR
Docket No: 5273-14
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 since the NUP was not set
aside by the commanding officer, as alleged by Petitioner; was
properly documented, Petitioner did not appeal the NJP or demand
court-martial; and filed his request in an untimely manner. In
accordance with the foregoing, the NUP should remain in the
record. However, the Board further concludes that the
documentation regarding assignment to weight control, as it
appears in the MCTFS, is inaccurate and all references thereto
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
assignment to weight control, to include, but not limited to the
MCTFS entry for the period from 21 April 1998 to 17 July 2000.
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 no further relief be granted.
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
TJR
Docket No: 5273-14
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
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