DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No. 10135-18 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Ref: (a) 10 U.S.C. § 1552 (b) MCO 5800.16A Ch 6 Encl: (1) DD Form 149 w/attachments (2) Administrative Remarks (Page 11) promotion-restriction counseling of 2 Apr 13 (3) Administrative Remarks (Page 11) promotion-restriction counseling of 30 Apr 13 (4) Petitioner’s MCTFS Legal Action 119 Remarks of 27 Sep 18 1. Pursuant to reference (a), Petitioner, an enlisted member of the Marine Corps, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting that his record be corrected by removing his 10 June 2013 non-judicial punishment (NJP) entry from the Marine Corps Total Force System (MCTFS). 2. The Board, consisting of , reviewed Petitioner’s allegations of error and injustice on 17 December 2019 and, pursuant to its regulations, determined that the corrective action indicated below should be taken on the available evidence of record. Documentary material considered by the Board consisted of the enclosures, relevant portions of Petitioner’s naval records, as well as applicable statutes, regulations, and policies. 3. The Board, having reviewed all the facts of record pertaining to Petitioner’s allegations of error and injustice, found as follows: a. Before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulation within the Department of the Navy. b. On 2 April 2013, Petitioner was issued enclosure (2), an Administrative Remarks (Page 11) promotion-restriction counseling entry due to pending charges of unauthorized absence (UA). On 30 April 2013, Petitioner was issued enclosure (3), another Page 11 promotion-restriction counseling entry due to pending charges of UA. c. The MCTFS legal action 119 remarks at enclosure 3 reflects that Petitioner received NJP on 10 June 2013, and there is an entry for time lost from 22 to 24 March 2013. d. Petitioner asserts that he “attempted to leave base during liberty hours to visit [his] girlfriend but [he] did not properly sign out of the barracks or take a liberty buddy with [him]” and that his first sergeant told him that he would receive NJP for the incident, but that the NJP was never imposed. Petitioner contends that there is no unit punishment book (UPB) or Page 11 counseling entry in his official military personal file (OMPF) documenting an NJP, and therefore the MCTFS entry documenting a 10 June 2013 NJP is invalid. e. Pursuant to reference (b), the UPB documents and records an NJP, and includes the offenses, punishment imposed, date imposed, whether the Marine was properly advised of his rights and the offenses alleged, whether he accepted NJP, and whether he appealed. Additionally, the UPB is required to be maintained in the Marine’s OMPF, and the absence of a UPB may serve as evidence that NJP was not imposed. CONCLUSION Upon review and consideration of all the evidence of record, the Board concluded that Petitioner’s request warrants relief. In this regard, the Board noted that Petitioner, although informed that an NJP would be forthcoming, contends that NJP was never imposed. Even assuming Petitioner’s commanding officer did impose NJP, the fact that the command did not follow procedural regulations makes it impossible to know if Petitioner made an informed decision and voluntarily accepted NJP. Further, it is not known whether the requirements of United States v. Booker, 5 M.J. 238 (C.M.A. 1977), were met. Additionally, it is not known whether Petitioner had the opportunity to consult with an attorney, whether he was informed of his right to refuse NJP, and whether the punishment was proportionate to the offense committed. The Board determined that it is the command’s responsibility to properly administer and record the NJP, which the command failed to do. Without properly recording the NJP, it is not clear that the command provided Petitioner with the procedural protections to which he was entitled, such as consultation with an attorney and the opportunity to demand a trial by court-martial. Because it is unclear that Petitioner’s due process rights were protected, the Board concluded that the NJP documented in the MCTFS shall be removed, and time lost from 22 to 24 March 2013 be restored, and Petitioner’s Page 11s which reference pending legal action shall be removed from his OMPF. RECOMMENDATION In view of the above, the Board recommends the following corrective action. That Petitioner’s naval record be corrected by removing enclosure (2), his 2 April 2013 Page 11 promotion-restriction counseling entry. That Petitioner’s naval record be corrected by removing enclosure (3), his 30 April 2013 Page 11 promotion-restriction counseling entry. That Petitioner’s record be audited to determine, based on removal of his promotion-restriction counseling entries, if remedial promotion to lance corporal/E-3, and subsequent promotion to corporal/E-4, sergeant/E-5, and staff sergeant/E-6 is warranted. That Petitioner’s naval record be corrected by removing any reference to time lost during the period 22 to 24 March 2013. That Petitioner’s record be audited to determine if any other rights, privileges, and property affected by the 10 June 2013 NJP were not restored, to include any medals he may have otherwise been entitled to. That the Defense Finance and Accounting Service (DFAS) complete an audit of Petitioner’s records and make payment of any money that Petitioner may be entitled to. 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. This includes, but is not limited to, all information systems or database entries that reference or discuss the expunged material. That, upon request, the Department of Veterans Affairs be informed that Petitioner’s application was received by the Board on 9 October 2018. 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. 5. Pursuant to the delegation of authority set out in Section 6(e) of the revised Procedures of the Board for Correction of Naval Records (32 Code of Federal Regulations, Section 723.6(e)), and having assured compliance with its provisions, it is hereby announced that the foregoing corrective action, taken under the authority of reference (a), has been approved by the Board on behalf of the Secretary of the Navy. Sincerely, 2/20/2020