DEPARTMENT OF THE NAVY
                    BOARD FOR CORRECTION OF NAVAL RECORDS

                                2 NAVY ANNEX
      WASHINGTON DC 20370-5100    SMC


                                                   Docket No: 06967-00
                                                   26 February 2001


From: Chairman, Board for Correction of Naval Records
To:   Secretary of the Navy
      REVIEW OF NAVAL RECORD
Ref:  (a) Title 10 U.S.C. 1552

End:  (1) DD Form 149 dtd l8JulOO w/attachments
       (2)  PERS-832C memo dtd l6NovOO w/MILPERSMAN 1910-44
       (3)  PERS-3 11 memo dtd 22Dec0O
       (4)  Subject’s ltr dtd 19Jan01
       (5)  Subject’s naval record

1.    Pursuant to the provisions of reference (a), Subject, hereinafter
referred to as Petitioner,
filed enclosure (1) with this Board requesting, in effect, that the
applicable naval record be
corrected by modifying the enlisted performance evaluation report for 16
November 1997 to
15 November 1998 by removing from block 43 (“Comments on Performance”) the
bullet
   -  Convicted of DUI [driving under the influence] by civil authority
during this reporting period.” and adjusting accordingly the mark of “2.0”
in block 36 (“Military Bearing! Character”). A copy of this report is at
Tab A.

2.    The Board, consisting of Messrs. Leeman and Morgan and Ms. LeBlanc,
reviewed Petitioner’s allegations of error and injustice on 23 February
2001, and pursuant to its regulations, determined that the corrective
action indicated below should be taken on the available evidence of record.
Documentary material considered by the Board consisted of the enclosures,
naval records, and applicable statutes, regulations and policies.

3.    The Board, having reviewed all the facts of record pertaining to
Petitioner’s allegations of error and injustice, finds as follows:

   a. Before applying to this Board, Petitioner exhausted all
administrative remedies available under existing law and regulations within
the Department of the Navy.

   b. In block 51 of the pertinent performance evaluation report,
Petitioner indicated he did not intend to make a statement.
   c. Petitioner submitted a document from the Island County District
Court, Oak Harbor Municipal Court, Oak Harbor, Washington. The document is
a motion, affidavit and order of dismissal of a charge of DUI. It reflects
that on 13 May 1998, he was placed on deferred prosecution for his DUI
charge. It further shows that on 5 May 2000, he moved for dismissal of the
charge and stated under oath that his prosecution was deferred “on various
terms and conditions, including the condition that he ... not be charged
with any violations involving alcohol and the use of an automobile”; and
that he “has fully carried out the terms and conditions of the Deferred
Prosecution; the completion of treatment!aftercare; and has not been
charged with any violation involving alcohol and the use of an automobile.”
Finally, the document reflects that on the basis of Petitioner’s sworn
statement, a judge ordered on 8 May 2000 that the charge be dismissed. This
document makes no mention of any conviction. Petitioner believes that since
the DUI charge was dismissed, it should not be documented in the
performance evaluation report in question.

   d. Enclosure (2) is an advisory opinion furnished by PERS-832C, the Navy
Personnel Command (NPC) Enlisted Performance Branch, recommending against
favorable action on Petitioner’s application. PERS-832C states that he
“was, in fact, convicted of DUI under a Deferred Prosecution agreement and
his command had every right to document that event in his service record.”
They further state “The fact that he met the required obligations, applied
for and received a court dismissal of the charge two years later does not
negate the incident.” They conclude that documentation supporting that
significant event should remain in the record; and that maintaining such
documents is essential to depict Petitioner’s character and background, and
in conjunction with any other unsatisfactory conduct, to serve as a
possible consideration for future administrative action. The PERS-832C
opinion states that under Article 19 10-144 of the Naval Military Personnel
Manual (copy also at enclosure (2)), Petitioner could have been processed
for administrative separation “for misconduct due to civilian conviction.”
Article 1910-144 refers to deferred prosecution as an action “tantamount
to” a finding of guilt.

   e. Enclosure (3) is an advisory opinion furnished by PERS-3 11, the NPC
Performance Evaluation Branch, also recommending denial of Petitioner’s
request. They state that the report in question is procedurally correct
under Bureau of Naval Personnel Instruction 1610.10 (Navy Performance
Evaluation and Counseling Manual), paragraph N-12.u, which requires
“Comment on alcohol abuse which is proving detrimental to a member’s
performance or personal behavior” and states that “Comments are appropriate
on a conviction for, or finding of, driving under the influence of
alcohol.” PERS-3 11 further states that ALNAV 080/96 provides that “all
alcohol related incidents will be documented in the officer fitness report
and enlisted performance evaluation.” They say that only the reporting
senior who signed the original report may submit supplementary material for
file in Petitioner’s record and make changes to marks; and that in the
block 43 narrative, he clearly states his reason for the grades assigned.
PERS-3 11 concludes that Petitioner does not prove the report at issue to
be unjust or in error.




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       f.   In his letter at enclosure (4), Petitioner expresses his
   disagreement with the advisory opinions at enclosures (2) and (3). He
   states that he has submitted supporting evidence from the court that his
   charge of DUI was dismissed; and he insists that he was never convicted
   of DUI, stressing the difference between being convicted and arrested.
   He contends that the statement, in the contested performance evaluation
   report, that he was “Convicted of DUI by civil authority” is untrue; and
   that this statement should never have been placed in his evaluation,
   because the case was not finalized for two years. He says he cannot
   compete for advancement because of this statement and the contested
   mark. Finally, he says the reason he did not submit a statement to the
   report in question is that his command said “it would not matter in this
   case and this was the standard bullet for an evaluation with this kind
   of situation.

   CONCLUSION:

   Upon review and consideration of all the evidence of record, and
   notwithstanding the contents of enclosures (2) and (3), the Board finds
   the existence of an error warranting partial relief, specifically,
   revision of the report in question to reflect Petitioner was the subject
   of deferred prosecution, rather than convicted. From their review of the
   court document, they find he is correct in asserting that he actually
   had no conviction. However, they substantially agree with the advisory
   opinions in concluding that his deferred prosecution for a DUI charge
   should be documented in the performance evaluation report. Since
   MILPERSMAN 1910-144 indicates the Navy treats deferred prosecution as
   “tantamount to” a finding of guilt, they conclude the mark in block 36
   would have been the same in any case. They note Petitioner may take
   action to have his record reflect the ultimate dismissal of the charge
   against him. In view of the above, the Board recommends the following
   limited corrective action:

   RECOMMENDATION:

       a.   That Petitioner’s naval record be corrected by modifying as
   follows the last bullet in block 43 (“Comments on Performance”) of his
   enlisted performance evaluation report for 16 November 1997 to 15
   November 1998, dated 23 November 1998 and signed by Commander S. A.
   Stanley, USN:

       Remove the word “Convicted” and replace it with “Subject of deferred
       prosecution for charge,” so the bullet as corrected will read as
       follows: “ - Subject of deferred prosecution for charge of DUI by
       civil authority during this reporting period.”

       b.   That any material or entries inconsistent with or relating to
   the Board’s recommendation be corrected, removed or completely expunged
   from Petitioner’s record and that no such entries or material be added
   to the record in the future.

       c.   That any material directed to be removed from Petitioner’s naval
   record be returned to the Board, together with a copy of this Report of
   Proceedings, for retention in a


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          confidential file maintained for such purpose, with no cross
          reference being made a part of Petitioner’s naval record.

             d.   That the remainder of Petitioner’s request be denied.

          4.     It is certified that a quorum was present at the Board’s
          review and deliberations, and that the foregoing is a true and
          complete record of the Board’s proceedings in the above entitled
          matter.




ROBERT D. ZSALMAN
Recorder
JONATHAN S. RUSKIN
Acting Recorder

          5.     The foregoing report of the Board is submitted for your
          review and action.





          Reviewed and approved:





C— ic~~H G. LYNCH
                          Assistai~ General Counsel
                       (Manpov:c~ hod Reserve Affairs)
MAY 162001
4

                           DEPARTMENT OF THE NAVY
                           NAVY PERSONNEL COMMAND
                            5720 INTEGRITY DRIVE
MILLINGTON TN 3305 5-0000

                                  5420
PERS—8 32C

16 Nov 00


         MEMORANDUM FOR THE  EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF
                              NAVAL RECORDS (BCNR)

         Via:     PERS/BCNR Coordinator (PERS-OOZCB)



         Ref:     (a) MILPERSMAN 1910—144

         End:     (1) BCNR File 06967—00
                     (2) Petitioner’s Microfiche Record

         1. The petition and naval records of subject petitioner have been
         reviewed relative to his request for removal of derogatory
         material.

         2. The review reveals that petitioner was, in fact, convicted of
         DUI under a Deferred Prosecution agreement and his command had
         every right to document that event in his service record. In fact,
         a NAVPERS 1070/613 should have been done to document the
         occurrence. dad his commanding officer desired, petitioner could
         have been processed for administrative separation for misconduct
         due to civilian conviction in accordance with reference (a) . The
         fact that he met the required obligations, applied for and received
         a court dismissal of the charge two years later does not negate the
         incident. Documentation supporting that significant event should
         remain in the record. The maintenance of those documents is
         essential to depict the petitioner’s character and background, and
         in conjunction with any other unsatisfactory conduct, to serve as a
         possible, consideration for future administrative action. A
         presumption of regularity attaches to official records, and the
         burden of proof is on the petitioner to show
      ~;    (C





Subj: I

documentary evidence that an error has occurred or an injustice suffered.
Therefore, favorable action on this petition is not recommended.





                                                    rtothe
                                  Head, Enlisted Performance
                                  Branch (PERS-832)
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                                                          1910-144

                                                   CH-28, 30 Mar 00
                                                         Page 1 of 4
                             MILPERSMAN 1910-144

Separation by Reason of Misconduct - Civilian Conviction
Responsible COMNAVPERSCOM    Phone:     DSN
Office      (PERS-83)        COM
                 FAX
Reference   Manual for Courts-Martial (MCM)
Policy      Members may be separated based on
      • civilian convictions, or
      • actions tantamount to findings of guilt:

               • adjudication withheld
      • deferred prosecution
               • entry in adult/juvenile pretrial intervention programs
               • any similar disposition of charges which includes the
                   imposition of fines, probation, community service, etc;
      when

             •   the offense would warrant a punitive discharge per MCM,
               appendix 12 for the same or closely related offense;

             •   the specific circumstances of the offense warrant
               separation; or

             •   civil sentence includes confinement for 6 or more months
               without regard to suspension, probation, or early release.

             All civilian convictions (federal, state, and local) including
             deferred prosecutions are binding on the issue of whether
             misconduct has occurred and the administrative discharge board
             is required to find that the misconduct did occur.

             Foreign court convictions are not binding on administrative
             boards, and do not preclude processing due to misconduct
             (serious offense and/or civil conviction).




                                                           OCT 2000 CD
                           DEPARTMENT OF THE NAVY
                           NAVY PERSONNEL COMMAND
                            5720 INTEGRITY DRIVE
                          MILLINGTON TN 38055-0000

                                                           1610
                                                           PERS-311
                                                           22 December 2000


       MEMORANDUM FOR TIlE EXECUTIVE DiRECTOR, BOARD FOR CORRECTION OF
                                NAVAL RECORDS

Via:  PERS/BCNR Coordinator (PERS-OOZCB)



Ref:  (a) BUPERSINST 1610.10 EVAL Manual
    (b)    ALNAV 080/96
     (c)    NPC ltr 5420 PERS-832C OF 16 November 2000
     (d)    Board for Correction of Naval Records  ltr  DLK:IAJ  Transmittal
        No. 431/2000 of 31 July 2000

End:  (1) BCNR File

1.    Enclosure (1) is returned. The member requests  to  remove  the  trait
grade of 2.0 in block-36 on his performance evaluation  for  the  period  16
November 1997 to 15 November 1998 and have  the  performance  mark  adjusted
accordingly.

2.    Based on our review of the material provided, we find the following:

   a.  A review of the member’s headquarters record revealed the  report  in
question to be on file.  It  is  signed  by  the  member  acknowledging  the
contents of the report and his right to submit a statement. The  member  did
not desire to submit a statement.

   b.  The report in question  is  a  Periodic/Regular  report.  The  member
alleges the trait grade of 2.0 in block-36 should be removed because he  was
charged with Driving under the Influence of Alcohol  (DLII)  and  placed  on
Deferred Prosecution and dismissed eighteen months later.

   c.   Per  reference  (a),  Annex  N,  paragraph  N-12.u,  the  report  is
procedurally  correct.  Reference  (b)  states  that  all  alcohol   related
incidents will be documented in the  officer  fitness  report  and  enlisted
performance evaluation.

   d.  We cannot administratively make the requested change to  trait  marks
on a performance evaluation.  Only  the  reporting  senior  who  signed  the
original report may submit supplementary material for file in  the  member’s
record. The contents of the report (marks,  comments,  and  recommendations)
are at the discretion of the reporting senior.  The  report  represents  the
judgment and appraisal  authority  of  the  reporting  senior.  In  block-43
(Comments on Performance) of the
performance evaluation, the reporting senior clearly states his reason for
the grades assigned to the report.

   e. Reference (c) recommended no relief be granted to Petty 0 Reference
(d) authorized the removal of the bullet; “convicted of DUI by civil aut
ority uring ~this reporting period” by administrative correction. Per
reference (b), the comments were removed in error. We are in the process of
having the bullet placed back in the performance evaluation.

   f The member does not prove the report to be unjust or in error.

3.    We recommend the member’s record remain unchanged.





































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He au, r t~rforman ce Evaluation Branch