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

BJG
Docket No:4942-07
18 January 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 17 January 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 report of the Headquarters Marine Corps (HQMC) Performance Evaluation Review Board (PERB), dated 25 May 2007, and the advisory opinions from the HQMC Military Law Branch, Judge Advocate Division (JAM7), dated 16 February and 11 September 2007, copies of which are attached. The Board also considered your rebuttal letters dated 22 and 23 June 2007 and 28 September 2007, each with enclosures.

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 report of the PERB regarding the contested fitness report. The Board noted that if you are correct you should have received a “CD” (change of duty) fitness report when your billet changed from warehouse chief to shipping/receiving chief, this would not support removing the report at issue outright, but reaccomplishing it with a later beginning date. Finally, the Board was unable to find the contested report was used as a disciplinary tool or a counseling document.

Concerning the contested nonjudicial punishment (NJP) of 8 June 2003, the Board was unable to find the investigation established you were not guilty of the offenses for which you were punished. The Board was likewise unable to find the officer who imposed the NJP was not in your chain of command. Although the Navy Marine Corps (NAVMAC) 10132 documenting the NJP does not show your signature acknowledging you were advised of your rights under Article 31, Uniform Code of Military Justice or your right to demand trial by court-martial, or a signature of your commanding officer acknowledging you were so advised, this did not persuade the Board you were not afforded these rights. Finally, you may submit to the Defense Finance and Accounting Service your objection that the forfeiture amount is not expressed in whole dollar amounts.

In view of the above, 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