DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 7611-19 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. Although your application was not filed in a timely manner, the Board found it in the interest of justice to waive the statute of limitations and consider your application on its merits. A three-member panel of the Board, sitting in executive session, considered your application on 4 November 2019. 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. Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel would not materially add to its understanding of the issues involved. Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of record. You enlisted in the Navy and began a period of active duty on 1 October 2009. In late May 2016, you were involved in a single car accident after driving off the road. In your petition to the Board, you state that on 28 May 2016, while assigned to duty in as a Second Class Master at Arms (MA2), you returned home around noon after helping a friend paint her apartment. You were invited by a fellow MA to join him and another MA on an afternoon trip to . You decided to join them around 1330. You report that you drank two beers with them before heading to dinner at a restaurant on the beach. You decided to end the evening after dinner, around 1930, and return to your home. You state that you became lost, inadvertently headed down a dirt road, and mistakenly drove into a trench in the terrain. Your vehicle became stuck; you tried in vain to free yourself with a winch. After you realized that you would not be able to extract your vehicle, you sought help by knocking on the door of a national who appeared with a shotgun and two large dogs. You were able to explain your situation to the national, who called the Navy base. At approximately 2245 hours on 28 May 16, the National Police, the base investigator and MAs arrived and you were permitted to leave. You rode back to the base with the base investigator and MAs, and were taken to Medical where you were treated and bandaged. You were then taken to the Security Office, where a breathalyzer was attempted to be administered to you. You state that “the machine was not collecting [your] breath no matter how hard or long [you] blew.” You contend that you asked to give blood for a blood alcohol content reading, or to be administered a portable breath test, neither of which happened. You were placed on liberty restriction and subsequently investigated for driving under the influence, reckless operation of a motor vehicle, and trespassing. You declined to make a statement and were placed on driving suspension. You state that you were not charged or found guilty of any offense by the authorities, but that the Navy initiated administrative separation proceedings against you. You subsequently appeared before an administrative discharge board (ADB) which found that you committed misconduct, but recommended separation from the naval service with an honorable characterization of service. You were discharged from the Navy on 2 March 2017, on the basis misconduct (serious offense), and received an honorable characterization of service and a reentry (RE) code of RE-4. You request a change to your RE-4 code and indicate that your narrative reason for separation causes prejudice and should be modified. You ask for a change to your RE-4 so that you may reenlist. You provide a personal statement, as well as a statement from civilian counsel with attachments. You contend that you offered to have your blood drawn for testing, which was not done through no fault of your own. You also indicate that the Navy sought administrative, vice judicial, proceedings against you because of a lower burden of proof, and assert that there was insufficient evidence to establish that you were driving your automobile while intoxicated. You also point out that the statement of MA1 , one of the MAs with whom you were at the beach the afternoon on 28 May 2016, was used to determine whether you were intoxicated. You note that MA1 himself was consuming alcohol and infer that MA1 was not a reliable witness. You also note that the ADB recommended an honorable discharge, which you contend is inconsistent with separating you on the basis of misconduct (serious offense). The Board, in its review of your entire record and application, carefully weighed all potentially mitigating factors in your case, including your length of active duty, your performance prior to the incident in May 2016, the circumstances of the afternoon at the beach, the lack of a definitive results of intoxication from either a blood alcohol test or from a breathalyzer, and your contentions regarding the administrative separation process. The Board also took into consideration your desire to return to military service. The Board noted that your available record does not contain a copy of your Administrative Separation package, and therefore relied on both your statement to the Board and the presumption of regularity when assessing the ADB process. The Board reviewed the 1 June 2016 U.S. Navy Criminal Investigation Division Report of Investigation in your service record when making its determination. The Board noted that at the time of the vehicle accident, you were an MA2. The Report states that you failed five times to provide a breath sample on the Intoxilyzer 800. Even in the absence of a definitive breathalyzer reading or a blood alcohol sample indicating intoxication, an ADB could reasonably determine that you nevertheless committed misconduct based on the available evidence, including the statements of your fellow MAs with whom you spent the day on 28 May 2016, the weight and credibility of which the ADB was clearly in the best position to evaluate. The Board further determined that, once the ADB found that you had committed misconduct, the issuance of an RE-4 (not recommended for reenlistment) was supported. Finally, the Board did not find the ADB’s recommendation of an honorable characterization of service to be inconsistent with its contemporaneous finding of misconduct. An ADB, in its discretion and under the totality of your service in your last period of enlistment, may determine that separation was an appropriate result without the additional loss of benefits associated with an honorable characterization of service. Accordingly, the Board found that your administrative separation with an honorable characterization of service, as well as the issuance of an RE-4 and the current narrative separation reason, are neither erroneous nor unjust, and corrective action is not warranted. 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, 12/9/2019