From:    Chairman, Board for Correction of Naval Records 
To:      Secretary of the Navy 
 
Subj:    REVIEW OF NAVAL RECORD   
            
 
Ref:    (a) 10 U.S.C. § 1552 
           (b) OPNAVINST 5350.4C  
           (c) CNO WASHINGTON DC 082110Z Dec 11 (NAVADMIN 373/11)  
 
Encl:   (1) DD Form 149 w/enclosures 
        (2) Report and Disposition of Offense(s) of 11 Jan 10 
        (3) e-client Field Code 17 / Document ID  
        (4) Office of Legal Counsel ltr of 26 Feb 20 
 
1.  Pursuant to reference (a), Petitioner, a former commissioned officer of the Navy, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting that his record be corrected by removing his nonjudicial punishment (NJP) and punitive letter of reprimand (PLOR).  
 
2.  The Board, consisting of , reviewed Petitioner’s allegations of error and injustice on 13 August 2020 and, pursuant to its regulations, determined that the corrective action indicated below should be taken on the available evidence of record.  Documentary material considered by the Board consisted of the enclosures, relevant portions of Petitioner’s naval records, and applicable statutes, regulations, and policies. 
 
3.  The Board, having reviewed all the facts of record pertaining to Petitioner’s allegations of error and injustice, found as follows: 
 
      a.  Before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulation within the Department of the Navy. 
 
      b.  On 12 November 2009, Petitioner was arrested by civilian police for driving while intoxicated.  Pursuant to reference (b), Petitioner self-reported the arrest to his chain of command.  Consequently, on 12 January 2010, NJP was imposed on Petitioner for violations of the Uniform Code of Military Justice (UCMJ), Article 92 (Failure to obey order or regulation), Article 111 (Drunken or reckless operation of a vehicle), and Article 133 (Conduct unbecoming an officer and a gentleman).  Petitioner was issued a punitive letter of reprimand (PLOR); enclosure (2).  The 15 January 2010 Report of Nonjudicial Punishment and related material were filed in Field Code 17 of Petitioner’s electronic service record; enclosure (3).  
 
      c.  Petitioner contends that his command’s investigation was based on his self-reporting, and punishment was awarded before his civilian trial took place.  He asserts that in November 2018, he submitted an application to affiliate with the Navy Reserve, and discovered that United States v. Serianne invalidated the self-reporting requirements, and that reference (c), NAVADMIN 373/11, was issued to clarify rights of those accused of civil crimes.  Petitioner contends that, had this NAVADMIN been in place in 2009, NJP not have been imposed.  
 
 d.  An advisory opinion (AO) furnished by the Office of Legal Counsel (BUPERS-00J), enclosure (4), recommended Petitioner's request be approved.  In this regard, the AO noted that, at the time of Petitioner's arrest on 12 November 2009, reference (b) required him to self-report his civil arrest, and NJP was not precluded by policy at the time.  The AO noted, however, United States v. Serianne, which determined that the self-reporting requirement of OPNAVINST 5350.4C which compelled members to make an incriminatory and testimonial statement was unconstitutional under the Fifth Amendment, and was decided by the United States Navy-Marine Corps Court of Criminal Appeal (NMCCA) on 25 November 2009 (68 M.J. 580, 2009). Thus, at the time NJP was imposed on Petitioner, NMCCA had already determined that the OPNAVINST 5350.4C self-reporting requirement was not constitutional.  
 
CONCLUSION 
 
Upon review and consideration of all the evidence of record, and especially in light of the AO, the Board determined that Petitioner’s request warrants relief.  The Board concurred with the AO that United States v. Serianne, determined that the self-reporting requirement of reference (b), which compelled members to make an incriminatory and testimonial statement was unconstitutional under the Fifth Amendment, and was decided by the United States Navy-Marine Corps Court of Criminal Appeal (NMCCA) on 25 November 2009.  The Board thus determined that Petitioner has produced substantial evidence demonstrating the existence of a probable material error or injustice warranting removal of enclosures (2) and (3), the 11 January 2010 Report and Disposition of Offenses documenting Petitioner’s NJP, his Report of NJP, and related documents. 
 
RECOMMENDATION 
 
In view of the above, the Board recommends the following corrective action. 
 
Petitioner’s record be corrected by removing enclosure (2), his 11 January 2010 Report and Disposition of Offense(s). 
 
Petitioner’s record be corrected by removing enclosure (3), all documents contained in his e-client Field Code 17 / Document ID . 
 
Any material or entries inconsistent with or relating to the Board’s recommendation be corrected, removed, or completely expunged from Petitioner’s record, and that no such entries or material be added to the record in the future.  This includes, but is not limited to, all information systems or database entries that reference or discuss the expunged material. 
 
4.  It is certified that a quorum was present at the Board’s review and deliberations, and that the foregoing is a true and complete record of the Board’s proceedings in the above-entitled matter. 
 
5.  Pursuant to the delegation of authority set out in Section 6(e) of the revised Procedures of the Board for Correction of Naval Records (32 Code of Federal Regulations, Section 723.6(e)), and having assured compliance with its provisions, it is hereby announced that the foregoing  
corrective action, taken under the authority of reference (a), has been approved by the Board on behalf of the Secretary of the Navy.