Docket No: 4864-19 
 Ref: Signature Date 
 
 
Dear : 
 
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 2 June 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 as well as the enclosed 9 October 2019 advisory opinion (AO) furnished by Headquarters Marine Corps, Staff Judge Advocate to the Commandant of the Marine Corps (JPL).  The AO was provided to you on 4 February 2020, and you were given 30 days in which to submit a response.  When you did not provide a response, your case was submitted to the Board for consideration. 
 
The Board carefully considered your request to remove your unit punishment book (UPB) documenting your 27 December 2018 non-judicial punishment (NJP).  Alternatively, you request to remove any mention of drunk driving from your UPB and associated documents.  The Board considered your contention that you did not make a voluntary, knowing, and intelligent waiver of your right to court-martial pursuant to Fairchild v.  Lehman.  You also contend that although you signed your UPB waiving your right to court-martial, your attorney did not counsel you that you would not be able to appeal your NJP if your civilian case was dismissed (See United States v.  Espinosa). 
 
The Board, however, substantially concurred with the AO that your written waiver of trial by court-martial was voluntary, knowing, and intelligent.  The Board noted that your commanding officer (CO) found you guilty at NJP for violation of Article 111, Uniform Code of Military Justice (UCMJ), for operating a vehicle with a recorded blood alcohol content (BAC) of .16 percent, you were properly notified of your Article 31, UCMJ rights, afforded the opportunity to consult with a military lawyer, afforded your right to appeal the NJP, and you chose not to appeal your NJP. 

Concerning your contention that you did not make a voluntary, knowing and intelligent waiver of your right to court-martial, the Board determined that your reliance on Fairchild v.  Lehman is misguided.  The Board noted that after his NJP,       was processed for administrative separation and discharged with an Other Than Honorable Discharge.  Further,     claimed that his military defense counsel misinformed him that he would not receive an adverse discharge if he elected NJP, and Fairchild’s lawyer submitted a statement admitting he could not recall the conversation.  In your case, the Board found no evidence that you were misled by your military counsel regarding the consequences of accepting NJP, and you provided none, nor were you processed for administrative separation.  The Board determined that you were properly notified of your Article 31, UCMJ right to demand trial by court-martial in lieu of NJP.  Moreover, the Board noted that you accepted responsibility for your actions, admitted to consuming alcohol and driving, and you also admitted to knowing that your actions were wrong. 
 
Concerning your contention that you were not informed that you would not be able to appeal your NJP after your civilian court decision, the Board concurred with the AO and determined that the purported misinformation is inconsequential.  In this regard, the Board noted that you were advised of your right to appeal and you elected not to file an appeal.  The Board also noted that your civilian charges were dismissed five months after your NJP.  Thus, the time to appeal your NJP expired and you could not appeal your NJP, regardless of the outcome of your civilian case.  The Board noted too, that the municipality of Port Royal ordered the removal of your criminal charges, however, the Board determined that the Marine Corps is a separate sovereign and could proceed with a court-martial notwithstanding the civilian court’s decision to dismiss. 
 
The Board further determined that your reliance on U.S. v.  Espinosa lacks merit, in Espinosa, the defendants were military members who received tickets on board Marine Corps Base  for operating motor vehicles while under the influence of alcohol.  The court determined that the military members were not properly advised of the maximum punishment available in civilian court, the administrative action the military might take, or the ramifications of their decision to accept NJP or the right to demand trial by court-martial.  In your case, the Board found no evidence that you were materially misled regarding the consequences of accepting NJP and you provided none.  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. 
 
Sincerely, 
7/7/2020