DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490 

Docket No: 4113-19 
Ref: Signature Date 

Dear 

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 14 April 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.  
 
The Board carefully considered your request to remove your unit punishment book (UPB) entry documenting your non-judicial punishment (NJP) received on 29 September 2017, and your Administrative Remarks (Page 11) 6105 entries counseling you for receiving NJP and not recommending you for promotion to the grade of private first class.  The Board considered your contention that you did not make a voluntary, knowing, and intelligent waiver of your right to court-martial.  You also contend that, although you signed the UPB entry waiving your right to court-martial, it should not be considered an adequate waiver of your rights, including your right to consult an attorney, because your command informed you that you were only going to receive a 6105 Page 11 counseling entry. 

The Board noted that your CO found you guilty at NJP for violations of Article 92, Uniform Code of Military Justice (UCMJ). The Board also noted that you were properly notified of your Article 31, UCMJ, rights, afforded the opportunity to consult with a military lawyer, afforded your right to appeal the NJP, and you chose not to appeal the NJP.  The Board noted, too, that on approximately eleven occasions throughout the NJP process, you were afforded the right to consult with a lawyer and to refuse NJP, but, on each occasion, you elected not to consult a lawyer and accepted NJP.  The Board determined that your reliance upon Fairchild v. Lehman in questioning the voluntariness of your waiver of your right to court-martial is without merit. In this regard, the Fairchild court determined that the Board erred in its decision because Fairchild was misinformed of the consequences of electing NJP by the counsel who was provided to him by the military.  In your case, although you were afforded the opportunity to consult with counsel, you repeatedly elected not to consult with counsel, and you provided no evidence that you were misinformed about the consequences of accepting NJP.  Moreover, the Board found no evidence that you were informed that you would only receive a 6105 Page 11 counseling entry, and you provided none. 

Concerning your reliance upon United States v. Espinoza, the Board noted that the court was petitioned to determine whether the government could prosecute military Service members in a civilian court for crimes committed on a military installation after they had waived their right to trial by court-martial and accepted NJP.  The Board determined that the circumstances of your case are unrelated and Espinoza has no bearing on your request.  Therefore, the Board determined there is no basis to remove your contested counseling entries.  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, 

4/27/2020