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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