DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490 
             
Docket No: 2814-19                                                           
Ref: Signature Date 

This letter is in reference to your application for correction of your naval record pursuant to Title 10, United States Code, Section 1552.  After careful and conscientious consideration of the entire record, the Board for Correction of Naval Records (Board) found that the evidence submitted was insufficient to establish the existence of probable material error or injustice.  Consequently, your application has been denied. 

A three-member panel of the Board, sitting in executive session, considered your application on 25 February 2020.  The names and votes of the members of the panel will be furnished upon request.  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, relevant portions of your naval record, and applicable statutes, regulations, and policies, as well as the enclosed 26 July 2019 advisory opinion (AO) furnished by the Staff Judge Advocate to the Commandant of the Marine Corps (JPL), and your response. 

The Board carefully considered your request to remove from your record your unit punishment book (UPB) entry documenting your 7 February 2016 non-judicial punishment (NJP), your 13 March 2016 Administrative Remarks (Page 11) 6105 counseling entry, and your fitness report for the reporting period 24 July 2015 to 7 February 2016.  The Board considered your contentions that the Uniform Code of Military Justice (UCMJ) Article and the specification were changed without being preferred anew per the Rules for Courts-Martial (RCM) 603, you did not receive a new notification and election of rights, you were misled about the offenses charged, and you did not have an opportunity to consult a lawyer.  You also contend that the disposition of charges was not initialed by the general officer who imposed the NJP, and that the final disposition was signed “by direction” of the appeal authority. 

The Board noted that you received NJP for violating Article 89, UCMJ, for being disrespectful to senior officers.  The Board also noted that you were properly notified of your Article 31, UCMJ, rights, afforded the opportunity to consult with a military lawyer and to appeal the NJP.  In fact, you appealed the NJP, but your appeal was denied.  The Board also noted that, pursuant to paragraph 6105 of Marine Corps Order (MCO) 1900.16, the Marine Corps Separation and Retirement Manual (MARCORSEPMAN), you were issued a 6105 Page 11 entry counseling you for receiving NJP.  The Board determined that the contested Page 11 entry was written and issued in accordance with MCO 1070.12K, the Marine Corps Individual Records Administration Manual (IRAM).  Specifically, the entry provided written notification concerning your deficiencies, it addressed specific recommendations for corrective action, where to seek assistance, and consequences for failure to take corrective action, it afforded you the opportunity to submit a rebuttal, and your commanding officer (CO) signed the entry.  

Concerning your contentions that the Article and specifications were changed without being preferred, the Board substantially concurred with the AO that such a requirement does not apply at NJP, just courts-martial.  The Board noted that your charges for being drunk and disorderly and disrespect to senior officers were noted on the original UPB notification; although the drunk and disorderly charge was removed from the final notification, you were notified of both allegations on the initial and final UPB.  Accordingly, the Board determined that a new notification and election of rights was not required, because you were already fully advised of all of your rights.  Moreover, the Board found no evidence that you were misled about the charges.  The Board also determined that there is no requirement to initial a pen change to the UPB, and that the officer who imposed NJP was not prohibited from signing the Decision of Appeal block “by direction” of the appeal authority.  Regarding your desire to remove your fitness report, you are required to exhaust all administrative remedies by submitting a petition to the Marine Corps Performance Evaluation Review Board (MMRP) before seeking relief from this Board.  The Board thus concluded that there is no probable material error or injustice warranting corrective action.   

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 matters, which will require you to complete and submit a new DD Form 149.  New matters are those not previously presented to or 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, 

4/2/2020