DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490 

Docket No: 6211-18                                                             
Ref: Signature Date 

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 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 27 August 2019.  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 carefully considered your request to remove from your official military personnel file the 26 September 2014 Unit Punishment Book (UPB) entry documenting your nonjudicial punishment (NJP) of the same date.  The Board considered your contention that the basis for the NJP for violation of Article 111 (drunken or reckless driving), Uniform Code of Military Justice (UCMJ), is not valid because the civilian criminal charges against you were dismissed.  (The Board did not consider your request to remove your adverse fitness report because you did not first exhaust the available administrative remedy—the Marine Corps Performance Evaluation Review Board—before petitioning the Board.)
 
The Board noted that, on 19 September 2014, you were arrested on suspicion of driving under the influence of alcohol.  On 26 September 2014, you received NJP for violation of Article 92 and Article 111, UCMJ.  You were advised of your rights under Article 31, UCMJ, and advised of your right to demand trial by court-martial in lieu of NJP but chose not to.  You were given the opportunity to consult with a military lawyer but did not choose to exercise this right.  The punishment imposed was reduction in grade to corporal, an oral reprimand, forfeiture of pay, restriction (suspended for 3 months), and 45 days’ extra duty.  You were advised of your right to appeal the NJP, but you did not do so.  

That same day, 26 September 2014, you were issued an Administrative Remarks (Page 11) 6105 entry counseling for violating Article 92 and Article 111, UCMJ.  You acknowledged the counseling and chose not to submit written statement, but, instead, you accepted responsibility for your actions in your adverse fitness report for the reporting period 1 April to 27 September 2014.  On 11 February 2015, the civilian criminal charges against you were dismissed.   

The Board noted that it is unknown why the civilian charges against you were dismissed, and the court documents you submitted do not provide a reason.  Regardless, dismissal of charges does not equate to innocence.  Additionally, the Board determined that the civilian court’s dismissal of the charges was not binding on your commanding officer, who had independent authority to determine whether misconduct was committed.  The Board thus concluded that the contested UPB entry 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 submission of new matters, which will require that you 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, 


10/4/2019