DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 6790-18 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD ICO Ref: (a) 10 U.S.C. § 1552 Encl: (1) DD Form 149 (2) Unit Punishment Book entry of 29 June 16 (3) NAVMC118(11) counseling entries of 29 Jun 16 (4) Fitness Report for the reporting period 27 Jun 16 to 29 Jun 16 (5) SJA to CMC advisory opinion ltr of 8 Jul 19 1. Pursuant to reference (a), Petitioner, a former non-commissioned officer of the Marine Corps, filed enclosure (1) with the Board for Correction of Naval Records (Board) requesting his record be corrected by removing the non-judicial punishment (NJP)/Unit Punishment Book (UPB) entries dated 29 June 2016. Petitioner also implicitly requests the removal of NAVMC 118(11) counseling entries dated 26 June 2016, removal of the fitness report for the reporting period 27 June 2016 to 29 June 2016, and restoration of all pay and allowance resulting from the reduction to E-4. 2. The Board, consisting of reviewed Petitioner’s allegations of error and injustice on 13 August 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, 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. In enclosure (1), Petitioner contends he received a 18 June 2016 driving while intoxicated (DWI) citation. After pleading not guilty to the charge, he informed his command of the incident. Ten days later, the command proceeded to impose NJP for the purported DWI. At the civil trial on 17 July 2017, the judge found Petitioner not guilty and ordered that the DWI be expunged from Petitioner’s civilian driving record. c. On 29 June 2016, in enclosure (2), Petitioner was the subject of NJP for “knowingly operating a privately owned motor vehicle under the influence of alcohol after being advised of and understanding the Marine Corps order against such act.” Petitioner was awarded forfeiture of $1241.00 for two months, restriction for 45 days, and reduction to E-4 effective 29 June 2015. Petitioner’s forfeiture of pay was suspended for 6 months. d. On 29 June 2016, Petitioner was issued enclosure (3), a counseling entry documenting the NJP and a counseling entry restricting Petitioner’s promotion the next higher grade (E-5) for six months. e. In enclosure (3), the grade change fitness report for the reporting period 27 June 2016 to 29 June 2016 documented Petitioner’s reduction to E-4. The Section I comment states, “SNM was the subject of battalion level non-judicial punishment on June 29, 2016 for Article 92 of the UCMJ. On or about June 18, 2016, was arrested and charged with driving a motor vehicle under the influence of alcohol with a blood alcohol content of .08% in f. On 17 July 2017, during a civilian trial, Petitioner was found not guilty of the charge of impaired driving. g. An advisory opinion (AO) furnished by the office of the Staff Judge Advocate to the Commandant of the Marine Corps, enclosure (5), advised that the charge in the NJP is materially flawed and that Petitioner’s request should be approved. The specific Marine Corps order is not named in the NJP, and according to the AO, it does not exist. The AO opines that it is possible that Petitioner’s commanding officer (CO) meant to charge Petitioner with violating the State law under Articles 111 or 134. The AO noted that it appears that the wording of the civilian charge, which reads as driving “while subject to an impairing substance”, may have misled the CO. That wording seems to imply that it is illegal to drive in if one has any alcohol in his system, which is simply not true. Moreover, beyond the acquittal in civil court, the NJP charge does not state an actual offense. The AO noted that it appears that the CO did not understand what he was charging, let alone what constituted an offense in this case. Accordingly, the AO recommends approving Petitioner’s request. CONCLUSION Upon review and consideration of all the evidence of record, the Board finds the existence of an injustice warranting corrective action. The Board substantially concurred with the AO and determined that the basis for the NJP was flawed. The CO did not charge Petitioner with an actual offense. The Board determined that the flawed NJP and civilian acquittal constitute sufficient evidence to remove the NJP. Accordingly, the Board concluded that the NJP/UPB entries of 29 June 2016, NAVMC 118(11) counseling entries of 26 June 2016, and the fitness report for the reporting period 27 June 2016 to 29 June 2016 shall be removed from Petitioner’s record. Additionally, Petitioner’s record shall be corrected by removing the reduction to pay grade E-4 and restoring all pay and allowances resulting from the reduction. RECOMMENDATION In view of the above, the Board directs the following corrective action. That Petitioner’s naval record be corrected by removing the non-judicial punishment (NJP)/Unit Punishment Book (UPB) dated 29 June 2016. That Petitioner’s naval record be corrected by removing the NAVMC 118(11) counseling entries dated 26 June 2016. That Petitioner’s naval record be corrected by removing the fitness report for the reporting period 27 June 2016 to 29 June 2016. That Petitioner’s naval record be corrected by removing the reduction to pay grade E-4 and restoring all pay and allowances resulting from the reduction. That 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. 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.