Dear  
 
This is in reference to your application for correction of your naval record pursuant to Section 1552 of Title 10, United States Code.  After careful and conscientious consideration of relevant portions of your naval record and your application, the Board for Correction of Naval Records (Board) found the evidence submitted 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 23 April 2021.  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 also considered the 24 July 2020 advisory opinion (AO) furnished by Headquarters, Marine Corps (JPL).  Although you were afforded an opportunity to submit a rebuttal, you did not do so. 
 
The Board determined that your personal appearance, with or without counsel, would not materially add to their understanding of the issues involved.  Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of record. 
 
The Board carefully considered your request to remove the nonjudicial punishment (NJP) you received on 13 February 2019 for physically controlling your personal vehicle while drunk.  As a result of the NJP, you received an adverse fitness report which you have also requested be removed from your record.  The Board considered your contention the only information the commanding officer (CO) had available to him at NJP was the initial police report.  The Board also considered your contention that the CO’s guilty determination was premature and is now an “erroneous and adverse finding” in your record because the civilian court determined you were not guilty of driving while intoxicated (DWI) but instead were at fault for failure to decrease your speed or use due care.   
 
The Board, however, substantially concurred with the AO.  The Board noted that you were not found “innocent” of the DWI charge (as contended in your petition).  You were actually allowed to participate in a diversion program that included school and a victim impact panel.  Further, the lack of a civilian court conviction for DWI does not change the fact that your CO could rely upon the Horizontal Gaze Nystagmus (HGN) test result, your erratic driving, and your admission to consuming two shots prior to driving, and find you guilty at NJP.  Based on the available evidence, the Board concluded there was insufficient evidence of an error or injustice to warrant granting your requested relief.   
 
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, 
5/4/2021
Executive Director