DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORD
S
2 NAVY ANNE
X
WASHINGTON DC
20370-5
100
BJG
Docket No: 3392-99
2 August 2001
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 2 August 2001.
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. In addition, the Board
considered the advisory opinion furnished by Headquarters Marine Corps, dated
11 May 2001, a copy of which is attached.
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. In this connection, the Board substantially concurred with the comments contained
in the advisory opinion. Accordingly, your application has been denied. The names and
votes of the members of the panel will be furnished upon request.
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
Enclosure
DEPARTMENT OF THE NAVY
HEADQUARTERS UNITED STATES MARINE CORPS
2
NAVY ANNEX
WASHINGTON, DC 20380-1775
IN REPLY REFER TO:
107 0
JAM3
1 MAY
1
2001
MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF
NAVAL RECORDS
Subj:
BOARD FOR CORRECT1
IN THE CASE OF PRI
L RECORDS
We are asked to provide an opinion on Petitioner's request
1.
for the removal from his service record book (SRB) and official
military personnel file (OMPF) of all entries related to the 17
December 1996 action vacating the suspended portion of the
nonjudicial punishment (NJP) he received on 1 November 1996.
Petitioner also requests restoration of all property,
privileges,
and rights affected by the vacation.
We recommend that the requested relief be denied.
2.
analysis follows.
Our
3.
Background
a.
On 1 November 1996,
Petitioner received NJP for
in violation of Article 86 of the Uniform
unauthorized absence,
Code of Military Justice (UCMJ).
reduction in grade to lance corporal and forfeiture of $558.00
The reduction to lance corporal was
pay per month for 1 month.
suspended for 6 months and, unless sooner vacated, was to be
remitted without further action.
Petitioner was awarded a
b.
On 12 December 1996,
civilian authorities arrested
Petitioner for driving while intoxicated (DWI), speeding, and
Petitioner admitted to the
driving with a suspended license.
police that he had been drinking and a subsequent breathalyzer
test revealed that he had a BAC of
.115 percent.
C .
On 17 December 1996,
Petitioner's commanding officer
vacated the suspended portion of Petitioner's NJP punishment and
reduced him to lance corporal.
d.
Approximately 10 months later, on 23 October 1997,
Petitioner agreed to the terms of a plea agreement with civilian
authorities.
violation, the DWI, speeding,
license charges were dismissed.
In return for pleading guilty to a lesser moving
and driving with a suspended
Subj:
BOARD FOR CORRECTION
IN THE CASE OF PRIVA
Analysis.
his commanding officer's earlier decision
This
Petitioner claims that because the original
4.
charges stemming from the 12 December 1996 incident were
ultimately dismissed,
to vacate the partial suspension of his NJP was not valid.
argument is without merit.
civilian authorities did not retroactively nullify the
commanding officer's independent decision to vacate the partial
suspension of Petitioner's NJP.
a servicemember violates any punitive article of the UCMJ.
Petitioner's BAC measured
was driving with a suspended license at the time of his arrest.
These facts provided Petitioner's commanding officer with a
sufficient basis to vacate Petitioner's suspended punishment.
Petitioner's plea agreement with
.115 percent, he was speeding, and he
Suspended NJP may be vacated if
Conclusion.
5.
Petitioner's request for relief be d
For the reasons noted, we recommend that
Military Law Branch
Advocate'Division
Judge
2
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