DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 0311-21 Ref: Signature Date Dear Petitioner: This 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 the evidence submitted was insufficient to establish the existence of probable material error or injustice. Consequently, your application has been denied. Although your application was not filed in a timely manner, the Board found it in the interest of justice to waive the statute of limitations and consider your application on its merits. A three-member panel of the Board, sitting in executive session, considered your application on 9 August 2021. The names and votes of the panel members 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 the 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, to include the 25 July 2018 guidance from the Under Secretary of Defense for Personnel and Readiness regarding equity, injustice or clemency determinations (Wilkie Memo). You enlisted in the Navy and commenced a period of active duty on 2 August 1995. On 1 September 2011, you received nonjudicial punishment for disobeying the order of a commissioned officer, disobeying lawful general orders, and for assault on your spouse. As part of your punishment, you received a punitive letter of reprimand. The incident for which you were punished occurred on or about 20 August 2011. On that day, you apparently drank alcohol, despite having been treated by, and having graduated from, Navy-directed Level II alcohol treatment. After drinking, you drove from your barracks room to your off-base home where your spouse was living. You had previously been issued a military protective order to stay away from your spouse. An altercation occurred with your spouse, and you were arrested by the County Sheriff’s Department. This altercation involving your spouse was referred to the local Navy family advocacy program (FAP). According to the FAP, you had two previous substantiated incidents with your spouse. On 12 October 2011, FAP substantiated the most recent case, and recommended that you be considered a treatment failure in light of the new substantiated event occurring after you finished FAP treatment. On 5 December 2011, you were notified of the initiation of administrative separation processing due to due to misconduct, alcohol rehabilitation failure, and family advocacy failure. You elected your right to an administrative discharge board. Your administrative board was held on 23 February 2012, at which you were represented by an attorney. The board members received evidence presented by both the representative of the government as well as evidence presented by your defense counsel. Your counsel presented witnesses in your defense. After reviewing all of the evidence submitted by both sides, the administrative board determined that you did not commit misconduct, that you were considered a family advocacy treatment failure, and that you were an alcohol treatment failure. The board recommended that you be discharged from the Navy, and that your discharge characterization should be general (under honorable conditions). After the board hearing, your counsel submitted a letter of deficiency, arguing that the findings of the administrative board were internally inconsistent. Specifically, your counsel argued that, because the board found that you did not commit misconduct, then you should not have been considered an alcohol rehabilitation failure or a family advocacy treatment failure. In response, the government counsel explained that the two latter bases for discharge were not contingent on a finding that you committed misconduct. Those latter two bases were based on the finding of your commanding officer that your actions amounted to an alcohol-related incident and the finding of the FAP that you were a FAP failure. Specifically, according to the government counsel, your commanding officer determined that you engaged in an alcohol-related incident after you admitted that you drank alcohol prior to driving to your off-base residence, continued to drink alcohol throughout the day, which was followed by an incident with your wife. The government counsel explained that, for the purpose of establishing the basis of an alcohol-related incident, it was enough that your commanding officer “determined that [your] conduct amounted to a second Alcohol Related Incident.” With respect to your counsel’s assertion concerning your FAP failure, the government counsel explained that, the “The FAP Counselor assessed [you as] a program failure after you admitted to being involved in the incident.” The Board carefully considered all potentially mitigating factors in your petition to determine whether the interests of justice warrant relief in your case including in accordance with the Wilkie Memo. You contend in your petition essentially the same arguments that your defense counsel made in his letter of deficiency described above, viz., that your administrative board made internally inconsistent findings when it did not find a basis to support a misconduct discharge, but found the bases for alcohol rehabilitation failure and FAP treatment failure, and thus your discharge suffers from a procedural defect. In review of all of your materials, the Board did not find an injustice in your record warranting relief. The Board concurred with the rationale of the government counsel in its response to your letter of deficiency, in particular, the government counsel’s explanation that the administrative board was not constrained to find you engaged in misconduct in order to find you were alcohol rehabilitation and FAP treatment failures. Your commanding officer determined you were an alcohol treatment failure after you admitted to drinking, driving to an off-base residence, continuing to drink, and engaging in some form of altercation with your wife to an extent that a local sheriff’s office was called to the scene. Similarly, the FAP counselor assessed that you were a FAP treatment failure. Thus, the administrative board found two bases for your discharge, namely that you were an alcohol and FAP treatment failure. In conclusion, given the totality of the circumstances, as well as a review of your overall service record, the Board determined that your request does not merit relief. 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. Sincerely, 8/18/2021 Executive Director