DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 6683-20 Ref: Signature Date 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. 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. A three-member panel of the Board, sitting in executive session, considered your application on 24 August 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 10 November 2020 advisory opinion (AO) furnished by Headquarters Marine Corps (JPL), which was previously provided to you, and your response to the AO dated 19 August 2021. On November 2019, you were arrested for wrongfully operating a vehicle with a Breath Alcohol Content (BrAC) reading of 0.054% at ( ), . Your Commanding Officer imposed NJP on 20 March 2020 and counseled you on April 2020 for violating Article 92 of the Uniform Code of Military Justice (UCMJ). You were subsequently given an adverse fitness report as a result of the BrAC test and NJP. The Board carefully considered your request to remove the unit punishment book (UPB) entry documenting your 20 March 2020 non-judicial punishment (NJP), Administrative Remarks Page 11 counseling entries of 6 April 2020, your rebuttal to the Page 11 entries, and an adverse fitness report covering the period 29 June 2019 to 20 March 2020. You also requested restitution of forfeited pay as a result of the NJP. You argue that the UPB entry, Page 11 entries, and adverse fitness report should be removed as you were innocent of the charge. You contend the NJP decision was unjust as you provided ample evidence to show that your BrAC readings were incorrect and were a result of your ketogenic diet, not alcohol. You further allege that the punishment imposed was unjust and disproportionate, and that the NJP was used as a method of retaliation for filing a complaint against Security Forces, and requesting assistance from the Commanding General (CG), Group (). The Board noted that the command properly notified you of the charge against you, the potential punishment, and the right to refuse NJP. You accepted Regimental NJP; the standard to determine guilt at NJP is preponderance of the evidence, which is a lower bar than the beyond a reasonable doubt standard at a courts-martial. The Board further noted that the command properly afforded you your right to present evidence at the NJP and to appeal that decision. The Board concurred with the AO the fact that the commander and the CG did not believe that your evidence disproved the results of the three breathalyzer readings given on 30 November 2019, does not constitute a material error or injustice; it is a difference of opinion. The Board found that the commander had sufficient evidence to find you guilty at NJP, to counsel you and issue you Page 11 entries. The Board further noted that you provided no evidence that your sentence was unjust as the sentence imposed was within the legal limits and there was insufficient evidence to show retaliation or bias. Finally, the Board determined that with respect to the fitness report, you have not exhausted all administrative remedies. Requests to remove a fitness report must be first submitted to the Performance Evaluation Board (PERB). Consequently, the Board determined that the NJP and Page 11 entries are valid and shall remain in your official military personnel file (OMPF). 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, 9/20/2021