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CG | BCMR | Other Cases | 2012-090
Original file (2012-090.pdf) Auto-classification: Denied
DEPARTMENT OF HOMELAND SECURITY 

BOARD FOR CORRECTION OF MILITARY RECORDS 

 
Application for the Correction of 
the Coast Guard Record of: 
 
                                                                                BCMR Docket No.  2012-090 
 
XXXXXXXXXXXXXXXXX 
XXXXXXXXXXXXXXXXX 

 

 

 
 

FINAL DECISION 

 
 
This proceeding was conducted according to the provisions of section 1552 of title 10 and 
section  425  of  title  14  of  the  United  States  Code.    The  Chair  docketed  the  application  upon 
receipt of the applicant’s completed application on March 8, 2012, and subsequently prepared the 
final decision as required by 33 CFR § 52.61(c). 
 
 
appointed members who were designated to serve as the Board in this case. 
 

This final decision, dated November 15, 2012, is approved and signed by the three duly 

APPLICANT’S REQUEST AND ALLEGATIONS 

 
 
 The applicant asked the Board to correct his record by removing all evidence of a March 
18, 2010 captain’s mast (non-judicial punishment (NJP)) in which he was punished for failing to 
obey the Commandant’s regulation prohibiting driving under the influence (a violation of Article 
92  of  the  Uniform  Code  of  Military  Justice  (UCMJ))  and  for  operating  his  privately  owned 
vehicle while legally intoxicated (a violation of Article 111 of the UCMJ).   
 
The  applicant  was  arrested  on  December  26,  2009  by  state  civilian  authorities  and 
 
charged with DUI.  On March 15, 2010, he pleaded guilty in state civilian court to one charge of 
driving a vehicle while impaired by alcohol.  Subsequently, on March 18, 2010, he was punished 
at captain’s mast for the same offense.   
 
 
The applicant alleged that his command violated the Military Justice Manual  (MJM) by 
punishing  him  for  the  same  offense  for  which  he  was  tried  in  state  civilian  court  without  first 
obtaining the approval of the Judge Advocate General (JAG).   
 

VIEWS OF THE COAST GUARD 

 
 
On May 30, 2012,  the Judge Advocate General  (JAG) of the Coast  Guard submitted an 
advisory opinion recommending that the Board grant relief to the applicant.  The JAG stated that 
the applicant’s command violated Coast Guard policy by subjecting the applicant to NJP for the 

 

 

same  offences  on  which  he  was  previously  tried  in  state  court  without  first  obtaining 
authorization from the JAG, as required by Article 1.A.7.c. & 3.B.4. of the MJM.     
 
 
The JAG stated that according to Article 1.A.7.c. of the MJM authorization from the JAG 
(CG-094) must be obtained before NJP may be imposed for an offense pending trial or tried by a 
state  or  foreign  criminal  court.    The  JAG  also  commented  that  under  Article  3.B.4.  of  the 
Military  Justice  Manual  no  person  in  the  Coast  Guard  may  be  tried  for  the  same  acts  that 
constitute an offense  against state or  foreign country  without first  obtaining  authorization from 
the JAG.  The JAG agreed with the applicant that his command had imposed NJP on him for the 
same offense for which he was tried in civilian court without authorization of the JAG.  The JAG 
stated: 
 

Based on the command’s actions of subjecting the applicant to NJP without prior 
JAG authorization—the applicant’s NJP is legally insufficient and should be “set 
aside” [in accordance with] 1.E.7.e. of the MJM.  The record of NJP shall also 
be  expunged  from  applicant’s  records.   Although  the  applicant  NJP  should  be 
removed, the supporting documentation of the applicant’s alcohol incident (page 
7) shall not be removed.   
 
. . . All . . . documentation of applicant’s properly documented alcohol incident 
pertaining  to  his  DUI  arrest  should  remain  as  part  of  the  applicant’s  official 
records.  The applicant is not entitled to relief on his delay in advancement and 
good  conduct  determination  because  both  were  properly  withheld  due  to  his 
properly documented alcohol incident.   

 

APPLICANT’S RESPONSE TO THE VIEWS OF THE COAST GUARD 

 
 
response.  He did not submit reply.   

On June 4, 2012, a copy of the views of the Coast Guard was mailed to the applicant for a 

FINDINGS AND CONCLUSIONS 

 

 

The Board makes the following findings and conclusions on the basis of the applicant's 

1.  The Board has jurisdiction concerning this matter pursuant to section 1552 of title 10 

military record and submissions, the Coast Guard's submission and applicable law: 
 
 
of the United States Code.   The application was timely. 
 
 
2.    The  advisory  opinion  recommended,  and  the  board  agrees,  that  all  evidence  of  the 
March,  18,  2010,  NJP  should  be  removed  from  the  applicant’s  record  because  the  applicant’s 
command  violated  Coast  Guard  regulation  by  punishing  the  applicant  at  NJP  for  the  same 
offense for which he had been tried in civilian court without approval from the JAG, as required 
by Article 1.E.7.e. of the MJM.  The JAG stated that the NJP is legally insufficient and should be 
set aside and removed from the applicant’s military record.  The Board agrees. 
 

  

 

 

3.    Accordingly,  the  March  18,  2010  NJP,  including  all  references  to  it,  should  be 

 
removed from the applicant’s record. 

[ORDER AND SIGNATURES APPEAR ON NEXT PAGE] 

 

 

 

 
 
  

 
 
 

 

 

 

ORDER 

 

The  application  of  XXXXXXXXXXXXXXX,  USCG,  for  correction  of  his  military 
record is granted.  The March 18, 2010 NJP, including all references to it, shall be removed from 
his military record.   

 
No other relief is granted.   

  

 
 
 Christopher M. Dunne 

 

 

 
 Randall J. Kaplan 

 

 

 

 
 
 Jennifer A. Mehaffey 

 

 

 

 

 

 

 

 

 

 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 

 
 
 
 
 
 
 
 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 

 



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