Docket No: 1774-20 Ref: Signature Date 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 Encl: (1) DD Form 149 w/attachments (2) NAVMC 10132 Unit Punishment Book of 26 Jul 17 (3) NAVMC 118(11) Administrative Remarks 6105 of 26 Jul 17 (4) Fitness report for the reporting period 1 Jul 17 to 27 Jul 17 (5) State of Summary Court Notification of 19 Sep 17 (6) HQMC memo 1070 JPL 1. Pursuant to the provisions of the reference, Subject, hereinafter referred to as Petitioner, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting that his naval record be corrected by removing his unit punishment book (UPB)/non-judicial punishment (NJP) and fitness report for the reporting period 1 July 2017 to 27 July 2017. 2. The Board, consisting of reviewed Petitioner's allegations of error and injustice on 9 March 2021 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 the 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 13 May 2017, Petitioner was charged with driving under the influence. Petitioner’s breath or blood alcohol exceeded the .08 legal limit for the state of . b. On 26 July 2017, Petitioner received NJP for violating Article 92 (failing to adhere to the leave and liberty policy on drinking and driving), Uniform Code of Military Justice (UCMJ) and Article 111 (drunk or reckless operation of a vehicle), UCMJ. Petitioner pled not guilty, however, his Commanding Officer (CO) found him guilty and awarded a punitive letter of reprimand. Petitioner was afforded the opportunity to appeal his CO decision at NJP and elected not to appeal his CO’s determination, enclosure (2). c. On 26 July 2017, Petitioner was issued a 6105 page 11 entry counseling for receiving NJP for violations of Article 92 and Article 111, UCMJ, enclosure (3). d. Petitioner was issued an adverse fitness report for the reporting period 1 July 2017 to 27 July 2017 for disciplinary action because he was found guilty at NJP. The Third Officer Sighter (TOS) noted that local authorities had since downgraded Petitioner’s citation to a failure to maintain a lane violation. The TOS also noted that based upon the court’s decision, Petitioner requested that his NJP be rescinded. However, since the burden of proof at NJP is a preponderance of the evidence, and video proof was used during the NJP, the NJP was upheld. The TOS, thus agreed that the reporting official’s comments were factual and void of undue bias, enclosure (4) e. On 19 September 2017, the State of entered a disposition of Nolle Prosequi and Petitioner was cited for failure to maintain lane, enclosure (5). f. On 12 October 2017, Petitioner submitted a request to his Commanding Officer (CO) to rescind his NJP due to the dismissal of his driving under the influence (DUI) charge. On 26 October 2017, Petitioner’s CO disapproved his request based upon the preponderance of the evidence. g. Petitioner contends that his NJP took place well before his case was adjudicated by civilian authorities, and that court documents show that his charges were not valid, and therefore, his charge for violating Article 111 has no basis and did not occur. Petitioner also contends that his Article 92 charge for not adhering to the leave and liberty policy is in error because there is no mention of drinking and driving in the policy. Petitioner claims that the civil court judge ordered the destruction of his records as part of the dismissal. Petitioner also claims that his inability to have the NJP removed from his record led to him receiving a negative endorsement for reenlistment, which led to a denial of reenlistment after 19 years of service. h. In enclosure (6), the advisor opinion (AO) noted that although civil authorities chose not to pursue the charge against Petitioner, the civil court’s decision did not prohibit the Marine Corps from holding Petitioner accountable at NJP. The AO explained that the burden of proof at NJP is by a preponderance of the evidence, while the burden of proof for a civilian DUI prosecution is beyond a reasonable doubt. The AO also noted that Petitioner’s CO determined that there was sufficient evidence for a finding of guilty at the NJP and that he reiterated that the preponderance of the evidence standard was met. The AO determined that there is a presumption of regularity that Petitioner’s CO acted in a regular manner in his official actions, and Petitioner has not overcome this presumption. Concerning Petitioner’s contention that his charge for violating Article 92, UCMJ, is in error, the AO concurred and determined that the leave and liberty policy did not address impaired driving, therefore, he did not violate Article 92. The AO recommended that any reference to Petitioner’s violation of Article 92, UCMJ should be removed from his service record. Concerning Petitioner’s reenlistment, the AO noted that his reenlistment required a waiver from his Commanding General (CG) because Petitioner’s alcohol related incident occurred during his current enlistment. The correspondence from Petitioner’s CO noted that this DUI was Petitioner’s second alcohol related incident within five years. Petitioner’s CG declined to endorse the waiver. i. In response to the AO, Petitioner contends that his CO’s probable cause finding was based upon observations and the assessments of law enforcement, and not actual evidence. Petitioner also contends that his breath analysis showed a blank error reading. Petitioner claims that the channels for routing his reenlistment waiver were tainted because his CO that imposed NJP was the Chief of Staff for the CG. 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 substantially concurred with the AO that Petitioner’s NJP was valid. In this regard, the Board determined that his CO’s finding of guilt during NJP was just and within the CO’s discretionary authority pursuant to Article 15, the Manual for Courts-Marital (2016 ed.). The Board also concurred with the AO’s determination that Petitioner’s charge for violating Article 92, UCMJ was in error because the leave and liberty policy did not address impaired driving. The Board thus determined that all references to Petitioner’s violation of Article 92, UCMJ should be removed from his record. The Board also determined that because Petitioner’s NJP is valid, there is no basis to remove his UPB, associated page 11 entry or fitness report, enclosures (2) through (4). RECOMMENDATION In view of the above, the Board directs the following corrective action: Petitioner’s naval record be corrected by removing the statement, “Art 92 Failure to obey order or regulation by not adhering to the leave and liberty policy on drinking and driving” from block 1 of his UPB, and removing “92” from block 4 of his UPB; Petitioner’s naval record be corrected by redacting the statement, “Violation of Article 92 Failure to obey orders or regulations by not adhering to the leave and liberty policy on drinking and driving and” from his 26 July 2017 page 11 entry; Petitioner’s naval record be corrected by redacting the statement, “of violation of Article 92, in that he violated MCO 5100.19E, the Marine Corps Traffic Safety Program” from addendum page 2 of 2 of his fitness report for the reporting period 1 July 2017 to 27 July 2017; and no other changes to Petitioner’s 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.