From:  Chairman, Board for Correction of Naval Records 
To:   Secretary of the Navy 
 
Subj:   REVIEW OF NAVAL RECORD OF  
 
 
Ref:  (a) Title 10 U.S.C. § 1552 
  (b) JAGINST 5800.7F  
  (c) MCO P1400.32D 
  (d) SECNAVINST 1650.1H 
   
Encl: (1) DD Form 149 w/attachments  
   (2) NAVMC 10132 (UPB) of 12 Jan 17 
 (3) CO  ltr 1070 S-1 of 25 Aug 18 
 (4) HQMC memo 1070 JPL of 18 Sep 20 
    
1.  Pursuant to the provisions of reference (a), Petitioner, a former enlisted service 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 unit punishment book (UPB)/non-judicial punishment (NJP), promote to sergeant (Sgt/E-5) effective 1 April 2017, issue a Marine Corps Good Conduct Medal (MCGCM) effective 15 September 2017, issue a corrected DD Form 214 to reflect the grade E-5, and restoration of lost pay and allowances. 
 
2.  The Board, consisting of  reviewed Petitioner's allegations of error and injustice on 6 October 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, 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, found that, before applying to this Board, he exhausted all administrative remedies available under existing law and regulations within the Department of the Navy.  The Board made the following findings: 
 
     a.  On 15 December 2016, Petitioner was found guilty of “Disorderly Conduct, Engage in Fighting” by the Magistrate District Judge for .   
 
     b.  On 12 January 2017, Petitioner received NJP for violation of Article 128, Uniform Code of Military Justice (UCMJ) for striking the duty non-commissioned officer in the performance of his duties.  Petitioner was awarded reduction to lance corporal (LCpl/E-3) and forfeiture of $1062 per month for two months.  Petitioner’s forfeiture of pay was suspended for six months.  
 
     c.  Petitioner contends that his commanding officer (CO) set aside his NJP, however, the process was not completed before his end of active service.  As evidence, Petitioner furnished enclosure (2) correspondence from his former first sergeant (1stSgt) requesting removal of Petitioner’s NJP because NJP was imposed after his civilian conviction, without prior approval from the General Court Martial Convening Authority (GCMCA).   Enclosure (3) is his former CO’s endorsement, recommending removal of Petitioner’s NJP. 
 
    d.  Enclosure (4), an advisory opinion (AO), furnished by the Headquarters Marine Corps Military Personnel Law Branch (JPL), recommended that Petitioner’s request be granted.  The AO noted that there is substantial evidence that NJP was imposed after Petitioner had been convicted in civilian court for the same offense.  The AO also noted that reference (b), the Manual for the Judge Advocate General (JAGINST) provides that when a service member has been tried in a state court, the service member shall not be the subject of NJP without prior permission of the first GCMCA over the member. 
 
     e.  Reference (d), the Navy and Marine Corps Awards Manual provides that, “When the foregoing requirements have been met, but it is evident the individual is not deserving of the MCGCM due to a repeated record of valid letters of indebtedness, conviction(s) by civil court for major offense(s), or other acts not in keeping with the high moral standards of the Marine Corps, the CO will withhold the MCGCM. . .”   
 
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 pursuant to the JAGINST Petitioner’s NJP should be removed because NJP was imposed after Petitioner’s civilian conviction and without permission by the GCMCA.  Based on the foregoing, the Board determined that Petitioner’s NJP shall be removed.    
 
Concerning Petitioner’s request for promotion to Sgt, effective 1 April 2017, the Board determined that an audit of Petitioner’s promotion record is warranted and pursuant to reference (c), Petitioner shall be promoted to Sgt on the earliest date of eligibility after expiration of his promotion restriction.  Regarding Petitioner’s request for the restoration of all pay and allowances, the Board determined that the Defense Finance Accounting Service (DFAS) will conduct an audit of Petitioner’s record and will determine if any pay and allowances are due. 
 
Concerning Petitioner’s request for a MCGCM, the Board determined that Petitioner’s behavior is not deserving of the MCGCM.   In this regard, the Board noted that although Petitioner’s NJP was imposed in error, Petitioner did commit misconduct and was convicted for that misconduct by civil authorities.  The Board also noted that pursuant to reference (d), when due to conviction(s) by civil court for major offense(s), or other acts not in keeping with the high moral standards of the Marine Corps, the CO will withhold the MCGCM.  The Board thus concluded that Petitioner will not be awarded the MCGCM.    
Concerning the correction of Petitioner’s DD Form 214, the Board determined that Petitioner’s pay grade will be established upon review of his record and in consideration of his six month promotion restriction.  The Board thus concluded that there is no probable material error or injustice warranting additional corrective action at this time.  
 
RECOMMENDATION 
 
In view of the above, the Board directs the following corrective action. 

Petitioner’s naval record be corrected by removing enclosure (2), his 12 January 2017, unit punishment book (UPB)/non-judicial punishment (NJP).   
 
Note: Reduction from Cpl/E-4 to LCpl/E-3 shall be corrected and HQMC will conduct an audit of Petitioner’s promotion record and establish if eligibility for promotion to Sgt/E-5 on the earliest date of eligibility after expiration of promotion restriction. 
 
Petitioner be issued a Correction to DD Form 214, Certificate of Release or Discharge from Active Duty (DD Form 215) to reflect block 12.i (effective date of pay) as 2015 07 01 vs 2018 04 01.  Note: If HQMC finds Petitioner eligible to Sgt/E-5, DD Form 215 shall be issued to reflect block 12.i (effective date of pay) and blocks 4a/4b as Sgt/E5.   
 
Petitioner’s record be corrected by DFAS conducting an audit of his pay and allowances to establish any back pay due (i.e. Cpl/Sgt pay and BAH).   
 
Any material or entries inconsistent with or relating to the Board’s recommendation be corrected, removed, or completely expunged from Petitioner’s record, and no such entries or material be added to the record in the future.  This includes, but is not limited to, all information systems/database entries that reference or discuss the material being expunged.  
 
No other changes to 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. 
 
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.