From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF Ref: (a) 10 U.S.C. § 1552 (b) MCO 5800.16A Ch 6 Encl: (1) DD Form 149 w/attachments (2) Petitioner’s UPB entry of 25 Jan 18 (3) Administrative Remarks (Page 11) 6105 and promotion-restriction counseling of 25 Jan 18 (4) Fitness Report for the reporting period 26 Jan 18 to 31 Jan 19 (5) HQMC memo 1070 JPL 26 Nov 19 1. Pursuant to reference (a), Petitioner, an enlisted member of the Marine Corps, filed enclosure (1) with the Board, requesting that his record be corrected by removing his 25 January 2018 non-judicial punishment (NJP). 2. The Board, consisting of reviewed Petitioner’s allegations of error and injustice on 28 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, relevant portions of Petitioner’s naval records, and applicable statutes, regulations, and policies. The Board also considered an Advisory Opinion (AO) of 26 November 2019 from by Headquarters Marine Corps (JPL). 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. Pursuant to reference (b), unit punishment book (UPB) entries document and record NJP (including the offenses, punishment imposed, date imposed, etcetera, and whether the Marine was properly advised of his rights and the offenses alleged, whether he accepted NJP, and whether he appealed). UPB entries are required to be maintained in a Marine’s official military personnel file (OMPF). c. On 25 January 2018, Petitioner, then a sergeant, received NJP for violation of the Uniform Code of Military Justice (UCMJ), Article 92 for violating an off-installation curfew while not in a special liberty or leave status. The NJP was partly documented in his UPB (enclosure (2)). Based on the incomplete UPB, it is not known if, prior to the imposition of NJP, Petitioner was advised of and understood his rights under Article 31, UCMJ, to demand trial by court-martial in lieu of NJP, to refuse NJP, and to consult with a military lawyer before deciding to choose to accept NJP. Also based on the incomplete UPB, the final disposition and suspension of execution of punishment (if any) is unknown. d. On 25 January 2018, Petitioner was issued enclosure (3), an Administrative Remarks (Page 11) 6105 entry counseling him for failing to follow regulations and his subsequent battalion-level NJP. Also on 25 January 2018, Petitioner was counseled and advised that he had been placed on a six-month promotion restriction status due to his battalion-level NJP. Petitioner acknowledged (signed) both entries and chose not to submit a written rebuttal to either. e. Petitioner was issued a ‘not observed’ fitness report for the reporting period 26 January 2018 to 31 January 2019. Section I (directed and addition comments) states “This administrative filler is filed in lieu of an observed fitness report. During this period the MRO served in the grade of Corporal and no fitness reports were required.” Enclosure (4). f. Petitioner contends that the UPB was not properly filled out and is missing the punishment and the suspension, and that it is unjust to remain in his OMPF. g. An advisory opinion (AO) at enclosure (5), furnished by Headquarters Marine Corps (JPL) recommends Petitioner’s request be approved. The AO determined that Petitioner’s command made numerous errors in the processing of his UPB, and his command did not ensure that he confirmed his understanding of his rights, including the right to consult with an attorney and the right to refuse NJP. The AO also noted that Petitioner’s command did not record his punishment and whether any part of the punishment was suspended, making it impossible to discern whether the punishment was proportionate to the offense committed. Additionally, the AO noted that the fact that Petitioner’s command did not follow procedural regulations makes it impossible to know if he made an informed decision and voluntarily accepted NJP, or whether the requirements of United States v. Booker, 5 M.J. 238 (C.M.A. 1977) were met. The AO determined that it is the command’s responsibility to properly administer and record the NJP, which the command failed to do, and because it is unclear that the Petitioner’s due process rights were protected, the UPB and corresponding Page 11s which reference his NJP should be removed from his OMPF. 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 substantially concurred with the AO that Petitioner’s command did not follow procedural regulations, and the incomplete UPB 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, or whether Petitioner had the opportunity to consult with an attorney, and whether he was informed of his right to refuse NJP. The Board was, however, able to discern from the evidence of record that Petitioner was reduced in grade from sergeant to corporal, but was unable to determine if additional punishment was imposed, 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 Petitioner’s command failed to do. Without properly recording the NJP, it is not clear that his command provided Petitioner with the procedural protections to which he was entitled. Because it is unclear that Petitioner’s due process rights were protected, the Board concluded that Petitioner’s NJP shall be removed from his OMPF. RECOMMENDATION In view of the above, the Board recommends the following corrective action: Petitioner’s naval record be corrected by removing enclosure (2), his 25 July 2018 NJP and UPB entry. Petitioner’s record be audited and that all rights, privileges, and property affected by the 25 July 2018 NJP be restored, to include any medals he may have otherwise been entitled to. Petitioner’s naval record be corrected by removing enclosure (3), his Page 11 with a 6105 counseling entry and a promotion-restriction counseling entry. Petitioner’s naval record be corrected by removing enclosure (4), his fitness report for the reporting period 26 January 2018 to 31 January 2019, and replaced with an administrative filler. 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. 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. 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 (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.