Docket No: 2688-18
Ref: Signature Date 



This letter is in reference to your application of 14 February 2019 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 24 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 carefully considered your request to remove your 17 December 2017 non-judicial punishment (NJP), restore all rights and privileges (paygrade to E-4 with your original 1 September 2016 date of rank and forfeited pay), remove your 17 December 2017 Administrative Remarks (Page 11) 6105 counseling entry and promotion-restriction counseling entry. 

The Board considered your contentions that you did not violate any orders, you were not given a breathalyzer or blood alcohol consumption test to verify how intoxicated you were, there was no alcohol limit on base, you were falsely accused of sneaking off base, you did not receive any in-person legal counsel, and that it is unjust that your received the same punishment as a sergeant. The Board noted that, on 17 December 2017, you received NJP for violation of the Uniform Code of Military Justice (UCMJ), Article 134 (disorderly conduct, drunkenness). Before accepting NJP, you were advised of your right to refuse NJP and demand trial by court-martial, afforded an opportunity to consult with counsel prior to accepting NJP, and advised of your right to appeal the NJP.  You were awarded a reduction in grade to lance corporal, forfeiture of two months’ pay(suspended for six months) and 30 days’ restriction.  You were also issued a Page 11 6105 entry, counseling you for your violation of the UCMJ, Article 134 and your NJP, and you were issued a Page 11 promotion-restriction counseling entry.  You acknowledged (signed) both Page 11 entries and chose not to submit rebuttal to either. 

The Board determined that your commanding officer (CO) applied the “preponderance of the evidence” standard -meaning more likely than not – and found that you were in violation of Article 134 UCMJ for being drunk and disorderly, and that your CO was not required to have the results of a breathalyzer to make that determination.  The Board also noted that you were not charged with sneaking off base.  Moreover, nothing in the record supports your contention that conducting your legal consultation via telephone adversely impacted your due process rights. With regard to your contention that it is unjust that your received the same punishment as a sergeant, the Board noted that each case is determined on its own merits, and cannot be compared to others.  The Board thus concluded that there is no 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 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.