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 21 July 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, as well as applicable statutes, regulations, and policies.  The Board also considered the 9 September 2018 advisory opinion (AO) furnished by the Military Personnel Law Branch (JPL), which was previously provided to you.  Although you were afforded an opportunity to submit a rebuttal, you did not do so. 
 
The Board carefully considered your request to remove your 16 May 2016 Administrative Remarks (Page 11) 6105 counseling entry from your official military personnel file (OMPF).  You assert that you were involved in a vehicle rollover, you were taken into custody under the suspicion of driving under the influence (DUI) of alcohol, and taken to the hospital for a head injury.  You claim that no breathalyzer or blood alcohol content (BAC) test was administered on site.  You also assert that while you were waiting for your civilian court case to be adjudicated, you were issued the Page 11 counseling entry stating that you had been arrested for DUI.  Lastly, you assert that the civilian case was adjudicated on 17 December 2016, and that both counts of DUI were dismissed and that you pled no contest to a reckless driving charge.  
 
The Board considered your contentions that the Page 11 is erroneous because you were not drinking or under the influence of any drugs during the night of the arrest, and that you were not charged with a DUI by civilian authorities. The Board, however, substantially concurred with the AO, noting that it is unknown why the civilian jurisdiction dismissed the charges, and that you did not provide the reason or circumstances surrounding the dismissal of the DUI charges and plea of no contest to reckless driving.  
 
The Board also noted that you provided contradictory explanations regarding the DUI charges.  Specifically that “both counts of DUI were dismissed” and “the Page 11 in my record regarding my arrest by San Bernardino County Sheriff's Office is erroneous because I was not drinking or under the influence of any drugs during the night of my arrest, and I was not charged with a DUI by a civilian court.”  The Board concurred with the AO and determined that you appear to wrongly equate the civilian court dismissal of the DUI charges with having never been charged, and that dismissal of the charges does not equate to innocence.  
 
Additionally, the Board determined that the civilian court dismissing the charges was not binding on your commanding officer (CO), who had the independent authority to determine whether the preponderance of the evidence proved that you committed the misconduct described in the Page 11.  The Board determined that your CO had proper authority to issue the counseling, that the civilian court dismissing the charge had no effect on that authority, and that you failed to provide sufficient evidence to show that your CO did not reasonably believe that the preponderance of the evidence supported the Page 11.  The Board thus concluded that the record does not constitute 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 the 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.