DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 6096-18 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Ref: (a) 10 U.S.C. § 1552 Encl: (1) DD Form 149 (2) NAVMC 10132 Unit Punishment Book of 29 May 09 (3) HQMC memo 1070 JPL of 4 Nov 19 1. Pursuant to the reference, Petitioner, a former non-commissioned officer 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 unit punishment book (UPB) entry documenting his non­judicial punishment (NJP) imposed on 29 May 2009, enclosure (2), from his official military personnel file (OMPF). 2. The Board, consisting of , reviewed Petitioner’s allegations of error and injustice on 7 January 2020 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 and supporting documents, relevant portions of Petitioner’s 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 contends that the he was not willfully derelict in his duties, was not assigned the duties for which he was punished, was not briefed on the proper process to appeal an NJP, and was punished for failing to do something prohibited by regulations. Petitioner also contends that the forfeiture awarded during NJP was based on his current pay grade (E-3), and not the pay grade to which he was reduced (E-2). Petitioner asserts that the 2009 version of the Defense Travel System (DTS) Manual did not state that the certifying officials’ duties were to disapprove an improperly prepared travel voucher. While the initial certification was improper, there was no illegal, improper, or incorrect payment because there was a subsequent correction to the travel voucher. c. Per enclosure (2), on 29 May 2009, Petitioner was the subject of NJP for a violation of Article 92 of the Uniformed Code of Military Justice (dereliction of duty), by failing to disapprove an improperly prepared travel voucher. Petitioner was awarded reduction to E-2 and forfeitures of pay for one month pay. The reduction to E-2 was suspended for six months. d. The advisory opinion (AO), enclosure (3), advised that Petitioner’s allegation that his pay was forfeited more that the permitted amount has merit. In this regard, Petitioner was forfeited $472 pay per month for one month. The legally permitted amount of forfeiture was $366. In accordance with MCO 5800.16, the Marine Corps Legal Administration Manual (LEGADMINMAN), the forfeiture must be based on the reduced rank, whether suspended or not. The AO also recommended that Petitioner’s request to remove the NJP be denied. The Petitioner’s request is untimely, there is a presumption of regularity with regard to the NJP, and it is not possible to determine if any of Petitioner’s other contentions constitute a material error due to the passage of time. CONCLUSION Upon review and consideration of all the evidence of record, the Board finds the existence of an error warranting partial corrective action. The Board concurred with the AO that the awarded forfeiture ($462) was in error. In accordance with the LEGADMINMAN, the forfeiture must be based on Petitioner’s reduced rank, whether suspended or not. Accordingly, the Board concluded that Petitioner’s pay record shall be reviewed and credited the difference between the amount forfeited ($462) and the authorized forfeiture amount ($366). Concerning Petitioner’s request to remove his NJP, the Board determined that the contested NJP shall remain in Petitioners OMPF. The Board noted that the Petitioner was properly notified of his right to refuse NJP, afforded the opportunity to consult with a military lawyer before deciding, acknowledged and signed his Article 31 rights, was afforded the opportunity to appeal the NJP, that Petitioner chose to accept NJP, and the Petitioner did not appeal the NJP. The Board also noted that in accordance with the DTS Manual, it is the certifying officials’ responsibility to review, sign, or return travel vouchers. The Board noted various adjustments to the subject travel voucher. However, the Board found no evidence that the travel voucher was returned to the traveler, and thus determined that Petitioner’s evidence was insufficient to support his contention or to determine the nature of the travel voucher adjustments. Moreover, the Board relies upon the presumption of regularity to support the official actions of public officers and, in the absence of substantial evidence to the contrary, will presume that they have properly discharged their official duties. Accordingly, the Board determined that the NJP was conducted pursuant to the Manual for Courts-Martial and the LEGADMINMAN. The Board thus concluded that there is no probable material error or injustice warranting corrective action. RECOMMENDATION In view of the above, the Board directs the following corrective action. That Petitioner’s naval record be corrected by adjusting Petitioner’s pay account to credit the difference between the amount forfeited ($462) and the authorized forfeiture amount ($366). That the Defense Finance and Accounting Service (DFAS) complete an audit of Petitioner’s pay record and make payment of any money that Petitioner may be entitled to. Any material or entries inconsistent with or relating to the Board’s recommendation be corrected, removed or completely expunged from Petitioner’s record, that no such entries or material be added to the record in the future. This includes but is not limited to all information systems/data base entries which reference and/or discuss the material being expunged. That no further relief be granted. That, upon request, the Department of Veterans Affairs be informed that Petitioner’s application was received by the Board on 13 August 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 Regulation, 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 the reference, has been approved by the Board on behalf of the Secretary of the Navy. 2/11/2020