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Docket No: 5734-14
26 January 2015
From: Chairman, Board for Correction of Naval kecords
To: Secretary of the Navy
Subj: REVIEW NAVAL RECORD o TE ::::-.
oc ll |
Ref: (a) 100.S.Cc. 1552
Encl: (L}) DD Form 149 with attachments
(2) Case Summary with attachments
(3) Service Record (excerpts)
(4) HOMC JPL memo dtd 22DEC14
i, 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 references regarding imposition of a
nonjudicial punishment (NJP) for reckless endangerment.
This request includes, but is not limited to any and all other
documentation (e.g., administrative remarks (page 11) entries,
fitness reports (FITREP), etc.) surrounding the circumstances of
the NJP as reflected in his Official Military Personnel File
(OMPF), Electronic Service Record (ESR), and the Marine Corps
Total Force System (MCTFS}, where applicable. Enclosures {1)
through (3) apply.
2. The Board, consisting of
. 1g
| reviewed Petitioner's allegations of error an
injustice on 21 January 2015 and, pursuant to its regulaticns,
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 (A0}
furnished by the Headquarters Marine Corps (HQMC), 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 filed in a timely manner.
TIR .
Docket No: 5734-14
c. Petitioner's record contains reference to the imposition
of NIP on 6 April 2009; however, the actual document is not
contained in the record. In this regard, there is no unit
punishment book (UPB) entry or record of NUP. However, the NJP
is referenced and/or documented by an adverse fitness report
(FITREP} for the period from 1 to 2 April 200" and a statement of
. rebuttal dated 6 April 2009.
d. An AO, “enclosure (4), received from the HOMC Military
Personnel Law Branch, regarding Petitioner’s request to remove
the documents which references the NJP recommends relief. In
this regard, the AO states, in part, that due to the command’s
failure to properly document the NUP, it is unclear whether the
NUP proceedings were conducted properly, or if at all conducted.
The AO further infers, in part, that the command had the
responsibility to ensure that legal proceedings were properly and
accurately conducted and documented, but failed to do so. Asa
result, all adverse material referencing the NJP should be
removed from both the Official Military Personnel File (OMPF) and
the Marine Corps Total Force System (MCTPS). In the absence of
the documented NJP, any and all documentation surrounding it
should also be removed.
CONCLUSION:
Upon review and consideration of all the evidence of record, the
Board concludes that Petitioner's requests warrants favorable
action. In this regard, and especially in light of the favorable
AO, the Board substantially concurs with the comments contained
in the AO and concludes that in the absence of the NUP document,
the documentation referencing it, as it appears in the record, is
improper as filed and as such all references should be removed
from the record. As a result of this action, Petitioner should
be restored all rights and privileges resulting from the NJP.
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 NJP of 6
April 2009, to include, but not limited to the FITREP for the
period from 1 to 2 April 2009, and all references thereto.
TUR
Docket No: 5734-14
b. That any and all materials.or entries inconsistent with or
relating to the Board's recommendation be corrected, removed, or
complerely expunged from Petitioner's record and that no euch
entries or materials be added to the record in the future.
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. ED
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
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