DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-51 00

SJN
Docket No: 10668-07
30 April 2008

From:	Chairman, Board for Correction of Naval Records
To:	Secretary of the Navy
	
	Subj: 
	
	Ref:	(a)	10	U.S.C.	1552

End:	(1) Case summary
(2) Subject’s naval record

1.	Pursuant to the provisions of reference (a), Petitioner, an active duty member of the Marine Corps, applied to this Board requesting that his nonjudicial punishment (NJP) and proficiency and conduct marks be removed from his record, and show that he was not reduced in rank from E-2 to E-1.

2.	The Board, consisting of Mr. Mr. and Mr. reviewed Petitioner’s allegations of error and injustice on 22 April 2008 and, pursuant to its regulations, determined that the limited corrective action indicated below should be taken on the avai1able evidence of record. Documentary material considered by the Board consisted of the enclosures, naval records, and applicable statutes, regulations, and policies.

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.	Petitioner’s application to the Board was filed in a timely manner.

c.	On 8 April 2006, Petitioner enlisted in the Marine Corps at age 30. On 13 February 2007, Petitioner received NJP for insubordinate conduct and failure to obey a written order. He received a reduction in paygrade from E-2 to E-l, a forfeiture of
$1300, and 30 days restriction and extra duties, which were suspended for a period of six months. Although the record does not detail the nature of Petitioner’s insubordinate conduct, he was given a page 11 counseling entry for being disrespectful in language and deportment toward a Marine staff sergeant and corporal, and for violation of school orders not to bring a cell phone to school.

d.	In his application, Petitioner contends that he believes that his NJP was unjust, because the punishment is too harsh for the offense. He states that his grandmother was in the hospital and he had his cell phone to receive updates on her condition. Further, Petitioner states that a corporal from another class approached him in a derogatory manner demanding his cell phone. Petitioner did not feel comfortable giving his cell phone to the corporal and fully expected him to contact Petitioner’s instructor in order to properly confiscate the phone. Finally, Petitioner states that his instructor noticed what was going on, called him over, ordered him to retrieve his cell phone, and turn it over to him, which he did.

e.	With his application, Petitioner states that he wants to apply for a commission in the Marine Corps and plans to submit a package if his NJP is found to be unjust.

f.	By letter dated 26 March 2008, Petitioner’s present commanding officer stated, in part, that the circumstances of the incident were unusual, and the punishment was excessive. He accompanied Petitioner to seek legal advice to investigate alternative means to remove the NJP from his record without success. Finally, he states that he would not have invested such energy had he not believed the Petitioner was treated unjustly.

g.	An advisory opinion (AO) of 7 February 2008 from the Deputy, Military Law Branch, Judge Advocate Division, Headquarters Marine Corps recommends that Petitioner’s request be denied. In this regard, the AO points out that no corrective action is warranted in this case because Petitioner fails to demonstrate by substantial evidence that his NJP or the issuance of his proficiency and conduct marks were in error or an injustice. The AO further states, in part, as follows:

...4.a. As an initial observation, we note that no legal error occurred in the imposition of NJP. [Petitioner] has provided no credible evidence that his NJP was unjust. Based on the documentary evidence, [Petitioner] was afforded his full procedural rights, including the opportunity to consult with an attorney. [Petitioner] was informed of his right to refuse NJP and chose to accept NJP. [Petitioner] was clearly advised of his rights to appeal and chose not to appeal his NJP. 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 a preponderance of the evidence” rather than “beyond a reasonable doubt.” [Petitioner’s] commander was in the best position to determine the facts surrounding the case. That determination should not be second-guessed now.

c.	In order to justify correction of a military or naval record, [Petitioner] bears the burden to show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the alleged entry or omission in the record was in error or unjust. [Petitioner] claims that he was used as an example to the other students as to what could happen at NJP. What [Petitioner] fails to mention is his conduct towards a noncommissioned officer and his failure to obey an order or regulation were outside the realm of acceptable behavior of Marines.

d.	Finally, [Petitioner] request’s [sic] that his unsatisfactory proficiency and conduct marks be removed. Per [Marine Corps regulation], after a reduction in rank, the highest proficiency and conduct marks a Marine may receive are 2.9/2.9, which [Petitioner] received. The command was in direct compliance with the regulations when they issued the proficiency and conduct marks to [Petitioner], and therefore no error or injustice occurred...

CONCLUSION:

Upon review and consideration of all the evidence of record the Board concludes that Petitioner’s request warrants partial favorable action.

The Board concludes that despite the AO, Petitioner’s punishment, awarded on 13 February 2007, was disproportionate and too harsh for the offenses, and the incident was aggravated by a simple mistake of bringing a cell phone to class.

The Board does not condone Petitioner’s misconduct. However, the fact that Petitioner was punished so severely over bringing a cell phone to class, seems to be extreme. In view of the foregoing, the Board recommends the following limited corrective action:

RECOMMENDATION:

a.	That Petitioner’s naval record be corrected by showing that on 13 February 2007, Petitioner was awarded a suspended forfeiture of pay, reduction in paygrade suspended, and suspended restriction and extra duty. All suspensions were for a period of six months from the date of the NJP.

b.	That the unsatisfactory proficiency and conduct marks remain in Petitioner’s record.

c.	That any material 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 material be added to the record in the future.

d.	That any material directed to be removed from Petitioner’s naval record be returned to the Board, together with a copy of this Report of Proceedings, for retention in a confidential file maintained for such purpose, with no cross reference being made a part of Petitioner’s naval record.

4.	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.

ROBERT D. ZSALMAN	BRIAN J. GEORGE
	Recorder	Acting Recorder

5. The foregoing action of the Board is submitted for your review and action.

								W. DEAN PFEIFFER
Executive Director

Reviewed and approved:

ROBERT T. CALI
Assistant General Counsel
(Manpower and Reserve Affairs)