DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAVYANNEX

WASHINGTON DC 20370-5100

JRR
Docket No: 
17 December 2002

3660-02

Dear

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 December 2002. 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 applicable statutes, regulations and policies. In addition, the Board
considered the advisory opinion furnished by the Acting Head, Military Law Branch, Judge
Advocate Division, Headquarters, U.S. Marine Corps, a copy of which is attached.

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. Accordingly, your application has been denied. The names and
votes of the members of the panel will be furnished upon request.

In this connection, the Board substantially concurred with the comments contained

It is regretted that the circumstances of your case are such that favorable action cannot be
Roard reconsider its decision upon submission of new and
taken. You are entitled to have the 
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:

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MEMORANDUM FOR EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF NAVAL

RECORDS

Subj:

TION

We are asked to provide an opinion on Petitioner's request

1.
for the removal from his service record book  
military personnel file  
non-judicial punishment  
the related Board of Inquiry  
1999.
captain.

(OMPF) of all entries related to the
(NJP) he received on 18 May 1999, and

(BOI) conducted on 20 December

Petitioner also asks that he be promoted to the grade of

(SRB) and official

We recommend that Petitioner's request for relief be denied.

2.
Our analysis follows.

3.

Background

a.

After receiving permission to delay his

(RS) Buffalo, New York) from a professional
Petitioner telephoned his command

On 25 September 1998, Petitioner, a Marine First
Lieutenant, was returning to his assigned place of duty
(Recruiting Station  
school in Leesburg, Virginia.
and requested permission to delay his arrival until 1200 hours
the following day.
arrival, Petitioner arranged to meet several friends at a bar
near Rochester, New York for a bachelor's party.
Petitioner
drank alcoholic beverages until he was intoxicated. At
approximately 0200, Petitioner left the bar with an acquaintance
(a corporal in the Marine Corps Reserve).
In the early morning
hours of 26 September 1998, Petitioner, a passenger in the
corporal's automobile, sustained serious injuries when the
corporal lost control of the car and crashed into a tree.
corporal was charged with driving while intoxicated.

The

b.

On 11 November 1998, Petitioner made an official written

statement to the officer assigned to conduct an investigation
into the accident for the purpose of making a line of duty  
/
misconduct determination.
falsely stated that he called the corporal prior to arriving at
the bar, and that he met the corporal at the bar because it was
a "neutral site" with which both were familiar.

In this written statement, Petitioner

Petitioner

Subj:

BOARD FOR CORRECTION OF NAVAL RECORDS (BCNR) APPLICATION
ICO FIRST LIEUTENANT THOMAS P. HOFFMAN 133 64 1202

omitted any mention of the bachelor party, an event for which he
arguably would not have been granted permission to miss work.

C .

On 12 April 1999, Petitioner made another written

After waiving his right

‘I mislead the investigating officer on the

statement concerning the accident.
against self-incrimination and his right to counsel, Petitioner
admitted,
circumstance surrounding the accident due to 'fear that I would
be found 'Not in the line of duty'.
I was very concerned over
my family's future if I did not recover from my injuries and did
not want to place an undue burden on them.
Once I had given a
false statement, I felt trapped to continue with the lie."

d.

On 18 May 1999, Petitioner received NJP for false

official statement and conduct unbecoming an officer and
gentlemen in violation of Articles 107 and 133, Uniform Code of
Military Justice  
Letter of Censure.

Petitioner's appealed was denied.

(UCMJ), respectively.

Petitioner was awarded a

e.

On 5 August 1999, the Deputy Chief of Staff for Manpower

The BOI,

substantiated the alleged

M&&A) ordered Petitioner to show cause

and Reserve affairs (DC  
for his retention in the Naval service at a BOI.
conducted on 20 December 1999,
misconduct.
The BOI found that Petitioner failed to demonstrate
acceptable qualities of leadership required of an officer of his
grade; failed to properly discharge the duties expected of an
officer of his grade and experience;
professional conduct unbecoming an officer as evidenced by the
commission of a military or civilian offense that, if prosecuted
under the UCMJ, could be punished by confinement of 6 months or
more, or would require specific intent for conviction.
The BOI
further determined, however, that none of these reasons
warranted separation, and therefore closed the case.

and engaged in personal or

f.

The BOI specifically found that, in his 11 November 1998
knowingly and with the intent to

written statement, Petitioner,
deceive, made a false official statement to
officer in violation of Article 107, UCMJ.

the investigating

9.

On 28 April 2000, the Commandant of the Marine Corps

(Code JA) delayed Petitioner's promotion to
for 1 May 2000).
Petitioner's possible removal from the promotion list because of
the misconduct substantiated at his BOI.

The delay was effected to consider

captain (scheduled

2

Subj:

BOARD 

FOR 

CORRECTION  

0~ NAVA L 
_ 

RECORDS 
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(BCNR) A PPLICATIO

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h.

Prior to any decision regarding Petitioner's promotion

to captain, Petitioner was medically retired as a first
lieutenant on 31 May 2000.

Analysis.

No legal error occurred in the imposition of

4.
Petitioner's NJP or the conduct of his BOI.
however, claims that his NJP was unjust and/or in error because
he did not commit misconduct.

Petitioner,

a.

Petitioner admitted guilt in his written statement of 12

His attempt to now "re-litigate" the facts

April 1999.
surrounding his offenses is both untimely and contrary to his
earlier express admissions.
Petitioner does not allege legal
error occurred in the imposition of NJP.
Rather, Petitioner
offers his self-serving opinion (unsupported by any evidence)
that the NJP was "unprofessional."
dated 25 May 1999 reflects that (1) Petitioner voluntarily
accepted NJP; (2) Petitioner was present at the hearing and was
accorded all rights including the right to consult with a
lawyer; and (3) all procedural requirements contained within
paragraph 4, Part V of the Manual for Courts-Martial were
satisfied.
should stand.

The record reveals no error or injustice and the NJP

We note that report of NJP

b.

Likewise, no error or injustice occurred at Petitioner's
Petitioner, who was represented by counsel at his BOI, did

Indeed, Petitioner
Rather, he claims that
and/or was unjustly convened

BOI.
not then raise any allegations of error.
does not now complain of legal error.
the BOI reached the wrong result,
in light of Petitioner's closed head injury.
Petitioner's counsel did not claim that Petitioner was mentally
incompetent to show cause for his retention.
makes clear that Petitioner was able to understand the issues
and participate in the presentation of his case.
Petitioner argued to the members that his injuries resulted in
memory loss and traumatic brain injury,
to misperceive his earlier false account as an intentional lie.
The members rejected this fanciful rationalization and instead
opted for a common sense determination -- that Petitioner lied.
The record reveals no error or injustice in the show cause
determination or BOI and the substantiated findings of the board
are properly made part of Petitioner's records.

which caused Petitioner

We note that

Instead,

The BOI transcript

3

Subj: BO

IC

TION

C .

Petitioner's request for promotion to the grade of

Title 10, U.S. Code, section

captain is unsupported by law.
14317 provides that if an officer is transferred to the
Temporary Disability Retired List after having been recommended
for promotion to a higher grade but, before being promoted, the
officer shall be treated as if the officer had not been
considered and recommended for promotion.
Petitioner was
medically retired following a lawful decision to delay his
promotion.
By law, he may not be promoted to the grade of
captain.

Conclusion.

5.
relief be denied.

Accordingly, we recommend that the requested

Acting Head, Military Law Branch
Judge Advocate Division

4