DEPARTMENT OF THE NAV 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490
               
Docket No:1962-19                                                             
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 that 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 3 March 2020.  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 17 October 2019 advisory opinion (AO) furnished by Headquarters, Marine Corps (JPL), which was previously provided to you.  Although you were afforded an opportunity to submit a rebuttal, you did not do so.  
     
The Board carefully considered your request to remove your 19 November 2018 nonjudicial punishment (NJP) and your 21 November 2018 Administrative Remarks (Page 11) 6105 counseling entry.  The Board did not consider your request to remove your fitness report for the reporting period 1 January 2018 to 20 November 2018 because you did not first exhaust the available administrative remedy—the Marine Corps Performance Evaluation Review Board— before petitioning the Board.  The Board considered your contention that your 28 November 2018 rebuttal was not entered into your official military personnel file (OMPF) due to procedural errors made during the proceedings. 

The Board, however, substantially concurred with the AO, noting that you do not allege that you are innocent of the underlying offense of possessing alcohol on board ship, or that you willingly accepted NJP for that offense, only that your Page 11 entry, rebuttal, and fitness report were mishandled or are procedurally flawed.  The Board noted that, contrary to your contention, your 28 November 2018 rebuttal to your Page 11 entry is currently included in your OMPF.  

With regard to your contention (as noted in your Page 11 rebuttal) that you were denied the opportunity to speak with an attorney, the Board, again, concurred with the AO that, even had you consulted with counsel, you could not have refused NJP because you were embarked on a vessel.  Further, when a Service member is denied the opportunity to speak with counsel prior to making a decision regarding whether to accept NJP, the remedy is that “evidence of the imposition of discipline . . , is inadmissible in any subsequent trial by court-martial,” United States v. Booker, 5 M.J. 238 (C.M.A. 1977).  Accordingly, evidence of your NJP will not be admissible in any future court-martial proceedings against you; however, it is properly maintained in your OMPF. 

With regard to your contention (as noted in your Page 11 rebuttal) that your command violated your privacy rights by storing materials from the investigation on a unit shared drive that was not password protected, the Board concurred with the AO that this alleged violation of privacy does not impact your service records, and that this Board is not the appropriate entity to address your concern.  Accordingly, the Board concluded that the contested NJP and Page 11 entry do 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 the 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, 

4/18/2020