DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 
Docket No: 7844-05
12 January 2007

This is in reference to your application for correction of your naval record pursuant to the provisions of title 10 of the United States Code, section 1552.

A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 5 January 2007. Your allegations of error and injustice were reviewed in accordance with administrative regulations and procedures applicable to the proceedings of this Board. Documentary material considered by the Board consisted of your application, together with all material submitted in support thereof, your naval record and applicable statutes, regulations and policies. In addition, the Board considered the advisory opinions furnished by Headquarters Marine Corps, dated 14 December 2005 and 17 January 2006, copies of which are attached, and your rebuttal.

After careful and conscientious consideration of the entire record, the Board found that the evidence submitted was insufficient to establish the existence of probable material error or injustice. In this connection the Board substantially concurred with the comments contained in the advisory opinions. Accordingly, your application has been denied. The names and votes of the members of the panel will be furnished upon request.

It is regretted that the circumstances of your case are such that favorable action cannot be taken. You are entitled to have the Board reconsider its decision upon submission of new and material evidence or other matter not previously considered by the Board. In this regard, it is important to keep in mind that a presumption of regularity attaches to all official records. Consequently, when applying for a correction of an official naval record, the burden is on the applicant to demonstrate the existence of probable material error or injustice.

Sincerely,

ROBERT D ZSALMAN
Acting Executive Director

Enclosures

DEPARTMENT OF THE NAVY
HEADQUARTERS UNITED STATES MARINE CORPS
3000 MARINE CORPS PENTAGON
			              WASHINGTON, DC 20350-3000
					IN REPLY REFER TO:

											1070
											JAM8
											4DEC 2005

MEMORANDUM FOR EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF NAVAL RECORDS

Subj:	BOARD FOR CORRECTION OF NAVAL RECORDS (BCNR) APPLICATION

Ref:	(a) NI4ER/PERB ltzr of 20 Sep 05

End:	(1) ROT dtd 4 Oct 03

1.	You requested an advisory opinion onjfIUIIIIhUIIUIhIIIIIj, (hereinafter “Applicant”) request for the removal of his fitness report, the reinstatement of his rank, and receipt of his recruiting ribbon.

2.	We recommend that Applicant’s request for relief be denied. Our analysis follows.

3.	Background

a.	In October 2003, while attached to the Marine Corps Recruiting Station, Phoenix, Arizona, Applicant, a Gunnery Sergeant, pay grade E-7, was arrested by civilian authorities in Tucson, Arizona for Assault and Disorderly Conduct. After a civil hearing, all of the charges against Applicant were dismissed.

b.	During April 2004, the Commanding Officer, 8th Marine Corps District, convened a Special Court-Martial at the Marine Corps Recruit Depot, San Diego, California. Applicant was charged with violation of Article 116, Breach of the Peace, and Article 128, Assault, of the Uniform Code of Military Justice (UCMJ). Applicant pleaded not guilty to both charges but was found guilty by a court-martial composed of officer and enlisted members. As punishment, Applicant was reduced to the rank of sergeant, pay grade E-5, and received forfeitures of $779.00 pay per month for a period of 3 months. Additionally, the members recommended that forfeitures be suspended for 6 months.

Subj:	BOARD FOR CORRECTION OF NAVAL RECORDS (BCNR) APPLICATION

4.	Analysis

a.	Applicant’s claim that his Court-Martial was unjust is without merit. We note as an initial point that the facts surrounding the charges against Applicant were fully litigated at a contested court-martial. Therefore, Applicant’s attempt to re-characterize his innocence is inappropriate.

b.	Applicant claims that his Commanding Officer was out to get him for his own personal reasons. This allegation is merely circumstantial. Under the UCMJ, Applicant’s commander had the discretion to determine what, if any, disciplinary or administrative action was appropriate. In determining the appropriate resolution, a commander must consider and balance many factors, including the nature of the offenses, the character and military service of the accused, military exigencies, and the interests of justice.. Ultimately, the commander must ensure a just result in the context of maintaining discipline and morale within the particular command involved.

c.	Applicant claims that his court-martial was unjust because he was denied access to his accuser is contrary to the findings of the case. As in any criminal trial, the accused at a Special Court-Martial (SPCM) is presumed innocent, and the government has the burden of proving guilt beyond a reasonable doubt. The rules of evidence that apply during a SPCM are similar to those applied in the U.S. District Courts. The accused has the right to confront and cross-examine the witnesses against him, to present relevant evidence in his own defense, and to testify or remain silent. If convicted, he may present evidence in extenuation and mitigation before any sentence is adjudged. The court-martial was conducted following the requirements of the UCMJ and Manual for Courts-Martial (2002 Ed.), and under the control of a military judge. Based on the results of trial (Enclosure (1)) the evidence available to the trier-of-fact was sufficient in law to support a conviction.

d.	A court-martial considers many factors before determining an accused’s guilt or innocence including: the facts presented by both parties, the credibility of the evidence presented, and the instructions on the law provided by the military judge. When a court-martial adjudges sentence, these

2

Subj:	BOARD FOR CORRECTION IN THE CASE OF

factors include sentence limitations imposed by military law; government evidence concerning the nature and circumstances of the offenses; and defense evidence offered in rebuttal to government evidence or in extenuation or mitigation.

e.	Any claims of error in the conduct or processing of Applicant’s court-martial should be directed to the appropriate avenue of redress. Specifically, if Applicant believes either his Constitutional or procedural rights were violated in the processing of his court-martial, his proper redress is as provided under the Manual for Courts-Martial. Since Applicant did not receive a sentence that would trigger an automatic appeal to the Navy-Marine Corps Court of Criminal Appeals, he has the absolute right to request an Article 69, UCMJ, review by the Judge Advocate General (JAG) of the Navy. If the JAG determines that any part of the findings or sentence to be unsupported in law or if a reassessment of the sentence is appropriate, the JAG may modify or set aside the findings or sentence or both. Therefore, at this time Applicant’s claims of improper referral to court-martial, improper consideration of evidence, lack of witness availability, and proper consideration of adverse matters during clemency are appropriate for review under Article 69, UCMJ, and not the Board.

f.	Applicant’s claim that his meritorious performance before or after the assault should render the court-martial findings, sentence, or other adverse action, unjust is baseless. Past performance were factors considered by both the convening authority and the court-martial members. Further, Applicant’s post court-martial performance is one of many factors for the convening authority to consider prior to making a discretionary decision to grant or deny clemency.

g.	Finally, Applicant’s appeal for equitable relief without demonstrated error or injustice in an otherwise proper court-martial is not cognizable by the Board. We note that clemency is a matter exclusively reserved to the convening authority, the Commandant of the Marine Corps, the Secretary of the Navy and the President. Consequently, Petitioner’s plea for clemency to the Board of Corrections for Naval Records should be ignored, as it is a matter reserved to other agencies.

h.	Per reference (a) the fitness report in question has not been processed, therefore it is not part of his military record and cannot be removed from his file or subject of an advisory opinion.

5.	Conclusion. Accordingly, we recommend that Applicant’s request for relief be denied.

6.	Please contact the Military Law Branch at (703) 614-4250, if you require additional information.

U.S.
Colwell
Marine Corps
Head, Military Law Branch
Judge Advocate Division

DEPARTMENT OF THE NAVY
HEADQUARTERS UNITED STATES MARINE CORPS
3280 RUSSELL ROAD
 QUANTICO, VIRGINIA 22134-5103	
 IN REPLY REFER TO:
		1650
		M1414A-3
	17 Jan 06

MEMORANDUM FOR	THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF NAVAL RECORDS

Subj:	REQUEST FOR ADVISORY OPINION IN THE CASE OF

Ref:	(a) SECNAVINST 1650.1G

1. A	review of the record available failed to reveal Lhat4j1,5 entitled to a Marine Corps Recruiting Ribbon. Personnel who are transferred due to relief for cause or relief for the good of the Service from recruiting duty are not eligible for the ribbon as indicated in SecNavinst 1650.1G.

2.	Point of contact at 

Lieutenant Colonel, US
Acting Head, Military Awards Branch