DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100

CRS
									 Docket No: 10534-06 
									 10 April 2008

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 9 April 2008. 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 opinion furnished by Headquarters Marine Corps dated 23 January 2007, a copy of which is attached, and your rebuttal thereto.

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 opinion. 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,

W. DEAN PFEIFFER
Executive Director

Enclosure

DEPARTMENT OF THE NAVY
HEADQUARTERS UNITED STATES MARINE CORPS
3000 MARINE CORPS PENTAGON
					         WASHINGTON, DC 20350-3000

				IN REPLY REFER TO:
									1070
										JAM2 -

								JAN 23 2007

MEMORANDUM FOR EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF NAVAL RECORDS

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

Ref:	(a) SECNAVINST 1920.6C
(b)	Rule for Court-Martial 306(c) (2)

1.	We are asked to provide an opinion on Applicant’s request that his Board of Inquiry (BOI) be set aside. Additionally, Applicant requests that he be reinstated in the Marine Corps at his previous rank of Major or Lieutenant Colonel, and that he be assigned to a combat tour in Iraq or Afghanistan.

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

3.	Background

a.	On 16 October 2001, Applicant was ordered to report to 4th Combat Engineer Battalion in Baltimore, Maryland, for an Active Duty/Special Work assignment (ADSW) for the period 17 October 2001 through 21 October 2001 to assist the unit in an upcoming inspection. Applicant traveled to the Washington D.C.-Baltimore area, but never reported for duty. Applicant claimed that he called the unit to notify them that he was too ill to report for duty, but there is no indication that he ever made such a call. During this trip, Applicant did travel to Quantico, Virginia, where he purchased uniform items and met a friend for lunch. Upon return from the ADSW, Applicant filed a travel claim for this period of temporary duty stating that he had completed his mission.

b.	Following an Article 32 hearing, charges against
Applicant were referred to a general court-martial by the
Commander, U.S. Marine Forces Reserve (MARFORRES), on 8 October
2002. The charges were Article 86, Unauthorized Absence,
Article 92, Dereliction in the Performance of Duties, and
Article 133, Conduct Unbecoming an Officer and a Gentleman, of
Subj:	BOARD FOR CORRECTION OF NAVAL RECORDS (BCNR) APPLICATION IN THE CASE OF

the Uniform Code of Military Justice (UCMJ). The trial was scheduled for 10 February 2003, but was delayed due to the Applicant’s counsel’s filing of a petition for extraordinary relief with the Navy-Marine Corps Court of Criminal Appeals. On 20 April 2003, this appeal was denied.

c.	On 6 May 2003, the Commander, MARFORRES, recommended that Applicant be required to show cause for retention before a BOI because of his misconduct, substandard performance of duty and moral or professional dereliction.

d.	On 18 August 2003, the military judge dismissed the unauthorized absence and dereliction of duty charges from the court-martial, finding that the Applicant’s AIJSW orders were not properly issued to him.

e.	On 29 September 2003 at Headquarters, MARFORRES, New Orleans, Louisiana, Applicant’s BOI was held. The Board substantiated allegations of misconduct for commission of a military offense for violations of Article 86 Unauthorized Absence, Article 92, Dereliction in the Performance of Duties and Article 133, conduct unbecoming an officer and a gentleman, UCMJ. The Board recommended that Applicant be involuntarily retired at his then current grade of major.

f.	On 21 January 2004, the Commander, MARFORRES withdrew the charges from the general court-martial.

g.	On 30 June 2004, the Commander, MARFORRES, concurred with the Board’s findings, however, disagreed with the Board’s recommendation as to the Applicant’s retirement grade and recommended that Applicant be retired at the lesser grade of captain.

h.	On 22 September 2004, the Assistant Secretary of the Navy for Manpower and Reserve Affairs retired Applicant in the inferior grade of captain.

4.	Analysis. Applicant asserts that the BOl results should be set aside because the BOI was conducted while a court-martial was pending, the BOI was contrary to the military judge’s findings at the court-martial, and the BOl results were not

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

supported by the evidence. Applicant’s claims are without merit.

a.	Contrary to Applicant’s claims, the discussion section of reference (b) specifically provides f or administrative separation as one of many administrative actions available to a commander to take “in addition to or instead of other action. . In this case, administrative action was taken and the charges at court-martial were withdrawn. Applicant, through his counsel, made this argument in response to his BOI on 20 June 2004 and has not provided any further evidence to support this claim. No error or injustice occurred.

b.	Applicant next argues that the BOI results were contrary to the military judge’s findings. The Applicant’s misconduct that provided the basis for the Article 86 and Article 92 charges, which were dismissed by the military judge at court-martial, was never litigated on the merits and no finding of guilty or not guilty was ever reached. Per reference (a), the Board was not bound by the military judge’s ruling on the motion as the BOI findings address whether the Applicant engaged in misconduct, the commission of which could be punished as a military or civilian offense which could be punished by a confinement of six months or more or any other misconduct which would require specific intent for conviction. The BOI is an administrative proceeding, not a criminal trial. It should also be noted that Board substantiated the Article 133, Conduct unbecoming an Officer and Gentleman offense, which was not dismissed at Applicant’s court-martial.

c.	Finally, Applicant claims that the Board’s findings were not supported by the evidence. Based on the documentary evidence, Applicant was afforded his full procedural rights, including the opportunity to consult with an attorney. These procedural rights are designed to ensure both fairness and finality in the context of an administrative process. The members of Applicant’s Board had ample evidence to support their findings and were in the best position to determine the facts surrounding the case.

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

5.	Conclusion. Accordingly,	that the requested
relief be denied.

Asst Head, Military Law Branch
Judge Advocate Division
By direction of the
Commandant of the Marine Corps