DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAVY ANNEX

WASHINGTON DC 203704100

USNFR

BJG
Docket No: 4025-98
13 May 1999

This is in reference to your application for correction of your naval record pursuant to the
provisions of title 10 of the United States Code, section 1552.

A three-member panel of the Board for Correction of Naval Records, sitting in executive
session, considered your application on 12 May 1999. 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, your naval record and
In addition, the Board considered the advisory
applicable statutes, regulations and policies.
opinions furnished by the Navy Personnel Command dated 4 December 1998 and
28 January 1999, and the advisory opinion from the Office of the Judge Advocate General
(OJAG) dated 25 March 1999, copies of which are attached. They also considered your
counsel’s rebuttal letters dated 20 January and 26 April 1999.

In this connection, the 

Board substantially concurred with the comments contained

After careful and conscientious consideration of the entire record, the Board found that the
evidence submitted was insufficient to establish the existence of probable material error or
injustice.
in the advisory opinion from OJAG in finding that your contested nonjudicial punishment
(NJP) should stand. They found that your NJP was a proper basis for the action to withdraw
your recommendation for advancement, which resulted in your removal from the selection list
for promotion to pay grade E-8. Finally, they noted that the withdrawal of your
recommendation for advancement was not technically punitive, but rather administrative.
They observed that such action could not have been a substitute for punitive action, since you
were the subject of NJP as well.
The names and votes of the members of the panel will be furnished upon request.

In view of the above, your application has been denied.

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 submission of new and
material evidence or other matter not previously 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,

W. DEAN PFEIFFER
Executive Director

Enclosures

copy to:
Donald J. Farber, Esq.

DEPARTMENT OF THE NAVY

NAVY PERSONNEL COMMAND

5720 INTEGRITY DRIVE

MILLINGTON TN 3805 5-0000

4(yp3 

-7y

DEC

4

1998

MEMORANDUM FOR EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF NAVAL

RECORDS (PERS-OOZCB)

Subj:

REQUEST FOR COMMENTS AND RECOMMENDATIONS IN THE CASE OF

I

Ref:

(a) BUPERS memo 5819 

Pers-OGLR  of 13 Jan 94

Petitioner claims that he was punished unjustly by his

1.
commanding officer at mast and subsequently denied advancement
to senior chief petty officer.
mast from his official record and to advance him to that pay
grade.

He now asks BCNR to expunge this

The Bureau of Naval Personnel took no action regarding his

2.
non-judicial punishment and is not the proper venue for an
interpretation as to the sufficiency of that proceeding.
Deputy Judge Advocate General,
an authoritative opinion concerning the propriety and fairness
of petitioner's non-judicial punishment.

Criminal 

Law,.(Code  20) can render

The

The Bureau of Naval Personnel did remove petitioner's name

3.
from the list of individual's selected for advancement to senior
chief petty officer.
that action.
endorse the findings and recommendations contained in
reference (a).

After a careful review of this case file, I

Reference (a) is a thorough analysis of

I will note that petitioner's arguments have been presented

4 .
previous to this petition in two complaints filed against his
commanding officer under Article 138 of the Uniform Code of
Military Justice.

Both were found to be without merit.

Assistant Legal Counsel

DEPARTMENT OF THE NAVY

NAVY PERSONNEL COMMAND

5720 

INTEDRITY DRIVE
MILLINGTON TN 38055-0000

5420
NPC-832C
28 Jan 99

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION

0~ NA V AL RECORDS

 

(BCNR)

Via:

NPC/BCNR Coordinator  

(NPC-OOZCB)

Subj: 

A0

USN 

(RE

Encl:

(1) BCNR File 04025-98
(2) Petitioner's Microfiche Record

1.
The petition and naval records of subject petitioner
have been reviewed relative to his request for removal of
reprimand and retroactive advancement to E-8.

2.
The review indicates that the petitioner was never
processed for administrative separation for any reason.
The issues of NJP, reprimand,
for advancement all fall under the authority of a
commanding officer and are not subject to further scrutiny
or appeal by NPC-832.
this case on the merits.

Therefore, no opinion is

and removal.-of recommendation

issued in

"Tkchnica'l  Advisor
To the Head, Enlisted
Performance Branch

DEPARTMENT OF THE

 NAV Y

NAVY-MARINE CORPS APPELLATE REVIEW ACTIVIT

OFFICE OF THE JUDGE ADVOCATE GENERA

WASHINGTON NAVY YARD

901 M STREET S

WASHINGTON DC 20374-504

 

- BLDG 111
E

7

Y

L

TO

IN 

REPLY  

5800 REFER  
201/0221

MAR 2 5 1999

From:
To:

Subj:

Ref:

Deputy Assistant Judge Advocate General (Criminal Law)
Chairman, Board for Correction of Naval Records

REQ
AOC
(a)
(b)
(c)

D RECOMMENDATION
USN (RET.),

IN THE CASE OF

Chairman BCNR  
Manual of the Judge Advocate General
Manual for Courts-Martial

ltr BJG Docket No: 4025-98 dtd   8 Feb 99

BACKGROUND

You asked for comments and recommendations concerning AOC

(petitioner) request to remove a   06 January 1992 non-

judicial punishment from his military record.
consideration of the references,
petition and the relevant case law, I have concluded that there
is an insufficient basis in the record to support petitioner's
I do not recommend that the nonjudicial
request.
punishment be expunged from petitioner's service record.

including petitioner's detailed

Upon careful

Therefore,

STATEMENT OF FACTS

In early December 1992,

the USS INDEPENDENCE (CV 62) was in

On 02 December 1992,

petitioner left the ship to socialize in

Petitioner was an E-7 attached to the
petitioner's duty day ended at 2000.

port at Yokosuka, Japan.
ship.
At about that time,
Yokusuka for the evening.
officer, along wit
who was the civilian wife
of an E-8 from the USS INDEPENDENCE, visited two local bars over
Petitioner admits that he consumed
approximately five hours.
several alcoholic drinks during the evening. Petitioner's duty
day was to begin at 0700, 03 December 1992.

Petitioner and a first class petty

At about   0300, 03 December 1999, petitioner became involved

in an altercation with two non-petty officer enlisted sailors
from the USS INDEPENDENCE.
junior enlisted individuals alleging that petitioner assaulted
them.

Although petitioner admits that he shoved one of them, he

The altercation resulted in the two

.

Subj:

REQUEST FOR COMMENTS AND RECOMMENDATION IN THE CASE OF
AOC

USN (RET.)

disputes the junior enlisted sailors' version of events and
alleges that, in any event, he acted to defe
had been subjected to verbal taunting from the two junior
sailors.

who

On 06 January 1992,

petitioner's Commanding Officer (CO)

bythe  CO included assault under UCMJ, Article 128,

took petitioner to nonjudicial punishment (NJP) for his
involvement in the 02-03 December 1992 altercation.
considered 
and drunk and disorderly conduct and incapacitation for duty
the CO dismissed the
under UCMJ,
charges relating to assault and incapacitation for duty, but
found petitioner guilty of drunk and disorderly conduct.

Article 134.

At the NJP,

The charges

Petitioner contends that the NJP hearing was unfair and

should be expunged from his service record.
this request on the fact that the CO excluded one of
petitioner's requested witnesses,
participating in the hearing.
his CO denied him the opportunity to present a complete defense
and that his due process rights were unlawfully violated.

As a result, petitioner believes

Petitioner bases

from

DISCUSSION 

-1

Commanding officers have broad discretion in conducting NJP
The statutes and regulations governing NJP recognize:

hearings.

. 

. [the] unique responsibility of a ship's captain as
. 
the master of a frequently isolated community of sailors;
the peculiar vulnerability of this independent society to
disorderly practices;
affording the captain the authority to swiftly and surely
'discountenance and suppress all dissolute, immoral, and
disorderly practices,' and to
who are guilty of the same.'
879, 882 (N.M.C.M.R. 1977).

and hence the essentiality of

'correct those
expeditiously
United States v. Penn, 4 M.J.

There are limits, however, to
Reference (c) specifies procedures
These procedures provide an accused with two important due
notice and the opportunity to present a
process rights:
defense.

the CO's discretion.
for conducting NJP hearings.

Petitioner avers that he was denied the opportunity to

present his defense because the CO  

decl

ined to a

llow a witness

2

.

Subj: RE

A0

ASE OF

beha1f.l

Although this act by the CO

the standard used to determine

to speak on petitioner's  
was a procedural violation,
whether the CO's action   unlawfully  diminished petitioner's right
to present his defense is stated in reference (c):
A procedural
violation has no effect on an NJP unless it materially
prejudices a substantial right of the servicemember.
1-h.
denial of
petitioner's opportunity to present his defense at the hearing.*

the relevant inquiry here is whether the CO's

,testimony  materially prejudiced

Therefore,

Part V, 

¶

The Supreme Court explained the material prejudice standard

in 1946:

[I]f one cannot say, with fair assurance, after pondering

The inquiry cannot be merely whether there was

all that happened without stripping the erroneous action from
the whole,
that the judgment was not substantially swayed by the
error, it is impossible to conclude that substantial rights were
not affected.
enough to support the result,
the error.
substantial influence.
the conviction cannot stand.
U.S. 750, 765 
41 (1992).

whether the error itself had
If so, or if one is left in grave doubt,

apart from the phase affected by

It is rather, even so,

(1946), cited i

, 328
38 M.J.

Here, the CO's action did not materially prejudice

petitioner for two reasons:
First, petitioner appeared at the
hearing and presented testimonial evidence, and, second, the CO
accepted and considered an alternative t
testimony -- her sworn statement.
is not possible to conclude that the CO's error had a
"substantial influence"

on the finding of guilt that leaves

Under those circumstances, it

oubt" that the outcome would have been different

,, testified.

In fact, petitioner's own rendition of events shows that

the CO's action in denying
testify hardly foreclosed petitioner's ability to present his
defense.
First, although not required to do so, petitioner
testified at the hearing.
Pet. at 17.
ample opportunity to present a defense.

the opportunity to

This gave petitioner

In addition, Ms.

' The record shows,
notice of the 
2 Petitioner concedes that,
to speak,

hearinq.

"the [NJP] is not automatically reversed."

Therefore,

even if the CO erred by not 

that issue is not discussed.
allowi
Pet. at

and petitioner does not dispute,

that he received adequate

Subj:

REQ
AOC

RECOMMENDATIOh IN THE CASE OF

ND 
, USN

I

MMCS
aring upon petitioner'

usband, 

USN, testified at the
Pet. at. 17 n.14.

More

importantly, petitioner admits that the CO "obviously" read Ms.

worn statement before the hearing.

Pet. at 17 n.15.

Therefore,

the CO had substantial information available to

corroborate petitioner's version of events with
and contrast that with his accusers' version of
Pet.
uld have said anything more at the hearing
that
than the recitation of events contained in her sworn statement.

Significantly, petitioner makes no claim

Moreover,

the defense cited by petitioner, that he was not

criminally responsible for any misdeeds occurring during the
altercation because he was  
only applicable, if at all,
the CO.
drunk and disorderly conduct under UCMJ, Article 134.
at encl. 36-7, which states that "defense of another" is, by its
terms, applicable only to assaults under UCMJ, Article 90, 91,
and 128 and to homicide.

defendin
from harm, is
to the assault charge dismissed by

is inapplicable to a charge of

"Defense of another"

See Pet.

Even if the defense does apply to  

drur& and disorderly

conduct, an examination of the punitive reprimand issued by the
CO as punishment at the NJP shows that the CO found petitioner
guilty at the hearing not because of the alleged assault, but
a supervisory senior enlisted
instead because petitioner,
person, was involved in an altercation with junior enlisted
persofiel  in a public street while under the influence of
alcohol.3

Even accepting

s version of events as true,
evidence to support the CO's finding that
record shows ample
petitioner was drunk and disorderly on 03-04 December 1992. In
sum, for the reasons discussed above,
required due process protections at the NJP hearing.

petitioner received the

Clearly,

the

3), it is important to note that reference 

.' Although petitioner alleges that he was not "drunk“ because his blood
. 10 and cites the California Vehicle Code (Pet.
alcohol level was less than 
(c) defines "drunk" as "any
at 
intoxication which is sufficient sensibly to impair the rational and full
exercise of the mental or physical faculties."
Reference (c) does not delineate a specific alcohol level that qualifies an
individual as "drunk."
which was taken at 0657 03 December 1992,
that petitioner was not only drunk but also  above a level of 
of the altercation,
the alcohol test.

In any event, the  . 096 level cited by petitioner,

which occurred about three hours before petitioner took

actually supports the contention

Part IV, 

¶ 

.lO at the time

35c(3)  (1984 ed.).

Subj: RE

A0

D RECOMMEN
USN (RET.

SE OF

y[?a5-$$

allowing
better p
petitioner in this case.

speak at the hearing would have been the
r absence did not materially prejudice

There are a few additional points worthy of mention:

First, although not articulated in his BCNR petition,

petitioner advanced several additional reasons as to why his NJP
was unfair in two Article 138 complaints.
authorities disposed of those arguments in responding to
petitioner,
reviewing authorities.

and I agree with the reasoning advanced by the

The appropriate

Second, petitioner asserts at page 16 of his petition that

Petitioner's cite

"military law provides a clear, two part formula" to determine
whether expungement of the NJP is required.
to United States
des
presence at a court-martial.
grounded largely in the Sixth  
criminal accused the right to confront the witnesses against
them.
States v. Penn, 4 M.J. 879,
-
the test cited by petitioner is not directly applicable to a
determination of whether due process was denied at NJP.

misleading, however,
rs r
The
Ame

0 compel
lancing test is
hich guarantees to

The Sixth Amendment does not apply at NJP.

The
est, which is cited next by petitioner is subject to the

See United

~

882 

(N.M.C.M.R.\-  1977).  

Therefore,

SI

same caveat.

As a final administrative matter, please note that our

mailing address has changed.
correspondence to the following address:

Effective immediately, forward all

NAMARA (Code 20)
Washington Navy Yard
716 Sicard Street SE Suite 1000
Washington, D.C. 20374-5047

Subj:

REQU
AOC

ND RECOMMEN
I USN (RET.

THE CASE OF

L/cD-(;Ilj/

Please advise if further comment or recommendation is

desired.

Ltcol, U.S. Marine Corps