DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 468-19 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 31 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, as well as applicable statutes, regulations, and policies. The Board also considered the enclosed 25 February 2020 advisory opinion (AO) furnished by the Office of Legal Counsel (PERS-00J) and your rebuttal (undated). The Board carefully considered your request to remove your 23 August 2018 nonjudicial punishment (NJP). The Board considered your contentions that your command committed material error in finding that you violated the Uniform Code of Military Justice (UCMJ), Article 134 (drunk and disorderly), and Article 128 (assault). You argue that the responding MA1 (base security) stated that you “didn’t appear to be intoxicated,” and that you punched the petty officer first class (PO1) in the face on a single occasion in self-defense. You also assert that the NJP should be removed based on your good military record. The Board noted that, on 23 August 2018, you accepted NJP for violation of the Uniform Code of Military Justice (UCMJ), Article 92 (failure to obey order or regulation), Article 107 (false official statement), Article 128 (assault), Article 134 (drunk and disorderly), and Article 134 (obstructing justice). You voluntarily pleaded guilty to all specifications and were awarded an oral reprimand, sixty days’ restriction, reduction to the next inferior paygrade, and forfeiture of half month’s pay for two months (suspended). On 30 August 2018, you appealed your NJP, claiming that the punishment awarded was disproportionate to the offense. You requested that the recommendation for your advancement be restored based on having been “a model Sailor with no incidents,” and your professionalism and dedication, which led to your meritorious advancement to E-6. You requested that your punishment be changed to a reduction in rate (suspended for six months), forfeiture of pay for two months, and two month’s restriction. On 7 September 2018, the Commander, found that your NJP was just and proportionate to the offenses committed, and your appeal was denied. The AO determined that your contentions are without merit, and recommend that the Board disapprove your request. In this regard, 00J noted that you admitted to striking the PO1 in the mouth with your fist, and the evidence supports the finding that this happened before he struck you. Additionally, the AO noted that your blood alcohol content (BAC) was over the concentration of 0.08 grams of alcohol per 100 milliliters of blood, which per se meets the UCMJ and due process standard for drunkenness, and that you admitted to striking your “boyfriend” in the mouth, which was disorderly conduct, and of such a nature as to affect the peace and quiet. The AO also noted that the appeal authority considered your appeal, and found that the punishment was neither unjust nor disproportionate to the offense. The AO determined that the administrative actions in your case were consistent with Navy policy and supported by evidence. In your rebuttal, you contend that, although your BAC was .089, you were not intoxicated and your alcohol consumption played no role in the incident, that your boyfriend had repeatedly accosted you on the night of the incident and that you struck him in the mouth to stop him from further physical aggressions, that your actions did not constitute a disruption of the peace because you were defending yourself from your attacker, and that your actions should not have been categorized as an assault because you were defending yourself. You also contend that your punishment was disproportionate because it will permanently tarnish your stellar military record, and that your NJP will unjustly prevent you from advancing in your career and will ultimately jeopardize your career. The Board, however, substantially concurred with the AO, and also noted that you were advised of your right to consult with counsel and to refuse NJP. You opted to proceed with NJP, and after your NJP, you availed yourself of your rights to request clemency and to appeal the NJP findings, and that your appeal was considered and denied. The Board determined that your commanding officer found, by a preponderance of the evidence, that you violated Articles 92, 107, 128, and 134 of the UCMJ, and the Board determined that your evidence did not substantiate or compel an alternative finding. Nor did you raise or otherwise assert any of these circumstances or potential defenses during your NJP. Your pleas of guilty are also amply corroborated by the record evidence. The Board also noted that the imposition of NJP and the denial of your appeal were within your chain of command’s discretionary authority, and concluded that you did not furnish sufficient evidence demonstrating 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, 4/23/2020