DEPARTMENT OF THE NAVY
						8OARD FOR CORRECTION OF NAVAL RECORDS
					   2 NAVY ANNEX
						  WASHINGTON DC 20370-5100
	
										CRS
						Docket No: 11293-06 
						6 March 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 5 March 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 2 February 2007, a copy of which is attached.

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
	FEB 02 2007

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

Subj:	APPLICATION FOR CORRECTION IN THE CASE OF GUNNERY

	 Ref:	(a)	MCM, Part V
		(b)	JAGINST 5800.7D

1 We are asked to provide an opinion  
 (hereinafter “Applicant”) application to request for removal of his two nonjudicial punishments (NJP) he received on 17 May 2002 and 22 November 2002. Applicant also requests reimbursement of the fines assessed at his NJPs.

2.	Opinion. For the reasons noted below, we recommend that the Board deny Applicant’s requested relief.

3.	Background

a.	On 27 April 2002, while attached to Headquarters and Service Company (H&S Co), Headquarters Battalion (HQBN), Marine Corps Recruit Depot (MCRD), Applicant was arrested by civilian authorities for operating a motor vehicle while under the influence of alcohol.

b.	On 17 May 2002, Applicant accepted NJP for driving under the influence of alcohol, in violation of Article l11, Uniform Code of Military Justice (UCMJ). Applicant received forfeitures of $1,363.00 pay per month for a period of one month; suspended for six months. Applicant did not appeal his NJP on 20 May
2002.

c.	On 2 November 2002, Applicant was again arrested by civilian authorities for operating a motor vehicle while under the influence of alcohol.

 d. On 22 November 2002, the Commanding Officer (CO), H&S Co, HQBN, MCRD, imposed NJP upon Applicant for driving under the influence of alcohol, in violation of Article 111, Uniform Code of Military Justice (UCMJ) . Applicant received forfeitures of $1,404.00 pay per month for a period of two months. Applicant did not appeal his NJP.

4.  Analysis

a.	As an initial observation, we note that no legal error occurred in the imposition of the NJPs. Further, Applicant has provided no credible evidence that his NJP was unjust or disproportionate. The Applicant voluntarily accepted NJP and was found guilty by his Commanding Officer. Based on the documentary evidence, Applicant was afforded his full procedural rights, including the opportunity to consult with an attorney. Applicant was informed of his right to refuse NJP and to demand trial by court-martial. These procedural rights are designed to ensure both fairness and finality in the context of an administrative process.

b.	Nonjudicial punishment is an administrative proceeding, not a criminal trial. Therefore, the formal rules of evidence do not apply. The standard of proof at NJP is “by preponderance of the evidence” rather than “beyond a reasonable doubt.” Applicant’s Commanding Officer had ample evidence to impose NJPs and was in the best position to determine the facts surrounding the case.

c.	Applicant claims that the imposition of his NJPs were improper because he was tried for the charges and found not guilty in civilian court. This argument is without merit. According to Part V, par l.f.(5), of reference (a), “Nonjudicial punishment may not be imposed for an offense tried by a State or foreign court unless authorized by regulations of the Secretary concerned.” The regulations of the Secretary concerned are found in paragraph 0124 of reference (b), and are triggered only after a person has been tried in state court. There is no prohibition on a commander imposing NJP prior to the matter being tried in state court. Imposing NJP prior to a civilian court action is a viable and lawful option within the discretion of a commander. Accordingly, no error occurred.

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.

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