DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAW ANNEX

WASHINGTON DC 20370-5100

ELP
Docket No. 5272-98
2 July 1999

This is in reference to your application for correction of your
naval record pursuant to the provisions of Title 10, 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 16 June 1999.
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 applicable statutes, regulations
and policies.

Your allegations of error and

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.

The Board found that you reenlisted in the Navy on 15 October
1996 for five years as an FT1 (E-6).
reenlistment you had completed more than 11 years of prior active
service.
prior enlistment, you had an alcohol related incident for which
you received nonjudicial punishment.
You completed a level III
alcohol rehabilitation treatment program in November 1995.

The record reflects that in October 1995, during a

At the time of your

On 24 May 1997, you were involved in a minor automobile accident
and were cited by local police for driving under the influence
(DIJI) with a blood alcohol contact (BAC) of .251.
placed on report on 30 May 1997.
Disposition of Offenses was referred for preliminary
investigation and a recommendation.
officer (PlO) reported to the commanding officer (CO) that in
addition to being cited for DUI, you also disobeyed a lawful
general regulation by failing to immediately advise the CO of
your arrest by civil authorities.
by your supervisors agreed that you were an excellent watch
stander and an asset to the command.

On 16 June 1997 a Report and

A preliminary inquiry

You were

It was noted that statements

The PlO recommended that

the offenses be disposed of at nonjudicial punishment (NJP).
On the same day, you received NJP for drunk and reckless driving
of a vehicle and disobedience of a lawful regulation by failing
to immediately notify the CO of your arrest by civil authorities.
Punishment imposed consisted of a reduction in rate to FT2 (E-5)
and forfeitures of one—half pay per month for two months.
Thereafter, you were disqualified for duty in submarines.

You

On 3 July 1997 you appealed the NJP as being unjust.
contended that you were not guilty of violating a lawful order
since the accident occurred on a weekend and you notified the
command on your first day back at work.
imposed NJP on you for DUI without suspending any of the
punishment, but a week later he suspended the punishment of
another crewmember accused of the same offense.
were processed for administrative separation and the other sailor
was not.
You asserted that the command’s action was unjust since
most commands did not act in such a case until it was were
resolved by civil authorities.
You noted that the command knew
of your arrest only because of your notification upon returning
to work.

You claimed that the CO

Further, you

On 11 July 1997 you were notified that you were being considered
for discharge by reason of misconduct due to commission of a
serious offense as evidenced by the foregoing NJP and alcohol
rehabilitation failure.
rights and elected representation by counsel and presentation of
your case to an administrative discharge board (ADB)

You were advised of your procedural

The ADB

On 30 July 1997 you appeared before an ADB with counsel.
found, by a vote of 3—0, that a preponderance of the evidence
showed that you had committed misconduct due to commission of a
serious offense and alcohol abuse rehabilitation failure.
ADB recommended an honorable discharge.
filed a letter of deficiency, citing the Manual of the Judge
Advocate General Manual (JAGM?~~N)which stated that a service
member should not be subject to court—martial or mast when he is
being tried in a civil court for an offense.
Counsel asserted
that you were being tried by civil authorities and stated “the
question is not can the command punish and process you but should
it.”
which prohibit double jeopardy.
as an alternative, separation on the basis of alcohol
rehabilitation failure.

Counsel argued that such actions ran counter to principles
Counsel requested retention or,

Your defense counsel

The

On 21 August 1997 your NJP appeal was denied.
authority initially noted that since the regulation at issue is a
lawful general order, it need not be shown that an individual had
actual knowledge of its provisions.
evidence supported a finding that you were aware of the
requirement to report your arrest since you admitted to other

More importantly, the

The appeal

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individuals that you knew of the requirement, but did not want to
report the arrest until you talked to an attorney.
Further,
other individuals stated that you did not notify the command
until the third duty day after the arrest.
contention of unequal punishment by the command, the appeal
authority stated that although you and the other individual
committed the same offense, the CO took into consideration that
you were a first class petty officer and had previously received
treatment for an alcohol abuse problem.

With regard to your

Your medical record reflects that on 22 August 1997 a fine needle
aspiration of the right thyroid showed no obvious evidence of
malignancy.

He noted that you had not yet been

The CO stated that there was no double

On 27 August 1997, the CO concurred with the ADB recommendation
for an honorable discharge and forwarded the proceedings to the
Chief of Naval Personnel, advising that you were being separated
by reason of misconduct.
tried by civil authorities for the single offense of DUI, but had
retained a lawyer and were pursuing deferred prosecution in an
attempt to avoid trial.
jeopardy issue in this case, and there was no fleet or group
policy on the issue of awarding NJP versus deferring to civil
authorities.
He asserted that the Navy wisely allows a CO to
exercise NJP authority at his discretion.
asserted that counsel’s letter cited no deficiencies in the
separation processing but only complained about the NJP which
served as the basis for separation.
demonstrated a blatant disregard for the Navy’s policy of zero
tolerance for alcohol abuse since you endangered yourself and
others by operating a motor vehicle while under the influence.
Your high blood alcohol content was seen as an additional
aggravating factor.
for productive naval service and your actions undermined good
order and discipline.

The CO determined that you had no potential

The CO further

The CO stated that you

The medical record reflects that thyroid surgery scheduled for
8 September 1997 was cancelled due to separation.
separation, the surgeon spoke to your executive officer and was
told that you were ineligible for care and could seek treatment
through the Department of Veterans Affairs.
suggested that you be sent on temporary additional duty for
surgery since such action was required for a meaningful
diagnosis.
discharged by reason of misconduct.

However, on 4 September 1997, you were honorably

However, the surgeon

On the date of

Paragraph 510.6 of the Standard Organization and Regulations of
the Navy states “any person arrested or detained by civil
authorities will immediately advise the commanding officer .
and state the facts concerning such arrest or detention.”

.

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Chapter 36 of the Naval Military Personnel Manual authorizes
separation of enlisted personnel by reason of misconduct due to
commission of a serious military or civilian offense when the
specific circumstances of the offense warrant separation; and the
member has committed an offense for which a punitive discharge is
authorized by the Manual for Court-Martial.
discharge is authorized for the offenses of drunk driving and
failure to obey a general order or regulation.
provides that the special court—martial convening authority is
the discharge authority when administrative board procedures are
used and the ADB recommends separation with an Honorable or
General discharge.

A bad conduct

Chapter 36

That paragraph states that when a

Paragraph 0124 of the JAGMAN establishes policy regarding the
exercise of military jurisdiction in cases tried in domestic or
foreign criminal courts.
person in the naval service has been tried in a state or foreign
court, whether convicted or acquitted, or when a member’s case
has been “diverted” out of the regular criminal process for a
probationary period or adjudicated by juvenile court authorities,
military charges shall not be referred to a court—martial or be
the subject of NJP proceedings for the same act or acts.
exception is made for those unusual cases in which trial by
court—martial or the imposition of NJP is considered essential in
the interest of justice, discipline, and proper administration
with the naval service.

An

In its review of your application the Board carefully weighed all
potentially mitigating factors such as your more than 11 years of
honorable service prior to the DUI, which included the award of
three Good Conduct Medals and the Navy Achievement Medal.
Board noted the lengthy explanation of your version of the events
and circumstances which led to your NJP and subsequent discharge,
and the documentation submitted in support of your application.

The

You essentially request removal of the NJP from the record and
reinstatement in the Navy.
The Board noted your numerous
contentions to the effect that the NJP was unjust in that
punishment was imposed prior to the case being resolved in the
civil court; other commands in the area did not take any action
in similar cases until the civil court had acted; and the command
ignored you when you alleged a violation of the jurisdictional
You also claim that you were
policy outlined in the JAGMAN.
given an insufficient amount of time to prepare for the NJP,
especially since the charge of failure to obey a lawful
regulation was added very shortly before the CO imposed NJP.
You assert that your fundamental right to due process was
violated by this and other injustices.
You also allege that you
were discharged only four days before you had been scheduled for
surgery.

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You further contend that the offenses did not warrant discharge
given your otherwise excellent record; the circumstances did not
meet regulatory requirements for separation; no response was
received to the letter of deficiency; and the command overreacted
and rushed to judgment in an attempt to make an example out of
you.
You also allege that the ADB was held before your appeal
was final and took no action regarding the unjust circumstances
surrounding the NJP; and the command abused its authority by
making it impossible for you to defend yourself.
the charge of failure to obey a lawful general regulation was
fabricated in order to justify the CO’s punitive action and the
use of “misconduct” as a basis for discharge.
You contend that
the arrest was reported on the first day back to work; you were
directed not to have any contact with anyone on board the
submarine, and therefore could not obtain any witnesses; the
executive officer threatened further adverse action if you
appealed the NJP; and you were told that you would receive
additional alcohol rehabilitation prior to discharge.

You claim that

In this

Therefore, the Board concluded there was no abuse of

The Board concluded that the foregoing factors, contentions,
assertions, and claims are insufficient to warrant removal of the
NJP from the record, or reinstating you in the Navy.
regard, the Board was persuaded that the CO had the authority to
impose NJP for the offenses.
The Board ndted that the important
word in the JAGMAN article on which you rely is the word “tried.”
At the time the NJP was imposed, you had not been tried on the
DUI charge.
discretion by the CO when he imposed NJP.
deficiency, your own defense counsel stated the question was “not
can the command punish you, but should it”, indicating that even
he realized the CO was within his authority since the civil court
had not acted.
authorities took on the civil offense.
the regulation which required that an arrest be reported clearly
•states that such action must be taken immediately.
that you should have reported the arrest to the command duty
officer or officer-of-the-day sooner than you did.

You provide no evidence as to what action civil

The Board also noted that

In the letter of

This means

The Board

However, the Board

You were a first class petty officer with above

The Navy views drunken driving as a serious matter.
noted your otherwise excellent record.
believed your excellent record could not mitigate your gross lack
of judgment when you made a choice to operate an automobile with
a SAC of 251.
average intelligence, a highly skilled technician, and had
received the necessary tools for maintaining sobriety during
alcohol rehabilitation.
inexcusable, and that the CO properly determined that you had no
potential for further service.
contrary, a drunk driving offense met the regulatory requirements
for discharge by reason of misconduct due to commission of a
serious offense since a punitive discharge could be awarded if

The Board believed your actions were

Despite your contention to the

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Determining whether or not an offense

Your contention that the ADB failed to

tried by court—martial.
warrants separation is a subjective issue to be determined by the
AIDS and the CO.
In your case, the ADS apparently agreed with the
CO when it concluded that the facts and circumstances of the case
warranted discharge.
consider the legitimacy of the NJP proceedings is without merit.
The purpose of an ADB is to determine if an individual committed
misconduct and, if so, whether he should be retained or
discharged and the characterization of the discharge.
an ADB neither affects the legitimacy of NJP proceedings nor is
it an avenue for reversing the results.
was convened prior the NJP appeal authority’s action is of no
consequence, especially since your appeal was denied.
numerous other claims are neither supported by the evidence of
record, nor by any corroborating evidence submitted in support of
your application.

The fact that the ADS

Action by

Your

Lastly, the Board noted that scheduled surgery was cancelled due
your discharge.
Administrative separation terminates any medical
treatment or disability processing then in effect.
available records contained no evidence of malignancy at the time
of discharge, the command’s recommendation that you pursue
treatment through the Department of the Veterans Affairs appears
appropriate and proper.

Since

In view of the foregoing, the Board found no basis for removing
the NJP and concluded that the discharge was proper and no change
is warranted.
The names and votes of the members of the panel will be furnished
upon request.

Accordingly, your application has been denied.

It is regretted that the circumstances of your case are such that
favorable action cannot be taken.
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.

You are entitled to have the

Sincerely,

W. DEAN PFEIFFER
Executive Director

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