DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

20 December 2002

From: Chairman, Board for Correction of Naval Records
To:
Subj:

Secretary of the Navy

Ref: (a) 10 U.S.C. 1552
Encl: (1) Case Summary

(2) Subject's Naval Record

1. Pursuant to the provisions of reference (a), Petitioner, an
enlisted member of the Navy,
applied to this Board requesting, in
essence, that his naval record be corrected by removing all
references to the nonjudicial punishment (NJP) imposed on 1 March
2001.
2. The Board, consisting of Messrs.
Zsalman, Milner and Agresti,
reviewed Petitioner's allegations of error and injustice on 18
December 2002 and, pursuant to its regulations, determined that
the corrective action indicated below should be taken on the
evidence of record.
consisted of the enclosures,
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:

Documentary material considered by the Board

naval records and applicable

a. Before applying to this Board, Petitioner exhausted all

administrative remedies available under existing law and
regulations within the Department of the Navy.

b. Petitioner's application to the Board was filed in a

timely manner.

c. Petitioner first enlisted in the Navy on 7 September
During this enlistment, he served in an excellent to

1989.
outstanding manner, advancing in rate to boatswains mate third
class, (BM3; E-4), and earning a Navy Achievement Medal (NAM).
After reenlisting in June 1993, Petitioner was advanced to BM2
(E-5) and earned his surface warfare qualification.

d. Petitioner then began to have problems with alcohol
In 1994, an alcohol-related incident resulted in the

abuse.
imposition of NJP, which included a suspended reduction in rate.
At that time, Petitioner completed an outpatient alcohol

treatment program.
resulted in the vacation of the 
Petitioner was reduced in rate to BM3.
Petitioner completed an inpatient (level III) program of alcohol
rehabilitation.

In January 1995, another such incident

suspenaed reduction, and

Subsequently,

In November 1995 Petitioner was reassigned to USS AUSTIN

(LPD-z), where he performed in an exemplary manner, was
readvanced to BM2, received three more awards of the NAM, and
His service aboard AUSTIN
earned an air warfare qualification.
was marred by a positive urinalysis for cocaine in 1999, but no
adverse action was taken because of the urinalysis coordinator's
conviction on child abuse charges and noncompliance with
urinalysis procedures.
AUSTIN and reported for duty to the Navy Cargo Handling and Port
Group (NAVCHAPGRU) at Naval Weapons Station (NWS) Yorktown,
Williamsburg, VA.

In December 2000 Petitioner detached from

f. On 1 February 2001, while on temporary additional duty in

Jacksonville, FL, Petitioner was permitted to rent a car after
being told on several occasions not to drink and drive.
Petitioner then drove to a local bar with a female Electronics
Technician Seaman (ETSN; E-3) R.
During this time,
about 1930 until between 2300 and 0000 hours.
Petitioner apparently consumed about three beers and ETSN R had
five or six beers and,
stand up."

in the words of one witness, 
Petitioner then left the bar with ETSN R.

They were at this bar from

otcould hardly

g. Petitioner and ETSN R gave differing versions of events
about what happened next.
According to ETSN R, Petitioner drove
her to another bar, where they stayed for about 30 minutes and
ETSN R said she had two
Petitioner bought them more drinks.
had."
mixed drinks but she
She did say that he was carrying a plastic cup upon leaving the
bar, and took a drink out of it just before he got into the car.
Petitioner agreed that they stopped at the bar, but said he went
to the bathroom, had a soft drink, and purchased a 12 pack of
beer, and consumed no alcohol.

'wasn't sure how much (Petitioner) 

h. While Petitioner was driving back to his hotel, he was

stopped by the local police for going the wrong way on a one-way
Although they apparently suspected him of driving under
street.
the influence of alcohol, the police officers did not perform a
field sobriety test, ask him to take a breathalyzer examination,
or place him under arrest.
to the detachment commander.
hours on 2 February 2001,
Petitioner 

When they did so, at about 0130
the leading petty officer noted that
According to the detachment

Instead, they simply turned him over  

ggsmelled of alcohol."

’

1 Petitioner's enlisted performance record (page 9) indicates that he also
received a second 
contain an administrative remarks (page 13) entry or a court memorandum (page
7) that would normally be prepared to reflect the imposition of NJP.

NJP for this misconduct. However, the record does not

2

commander, at that time, Petitioner admitted to consuming six or
seven beers during the evening.

On 28 February 2001 Petitioner was placed on report as

i.
follows for violating the Uniform Code of Military Justice
(UCMJ):

UCMJ, Article 92:

Disobeying a lawful order

Charge: Viol. 
or regulation.
Speoifioation 1: In that (Petitioner), on Active Duty, did,
at U.S. Navy Cargo Handling and Port Group, Fleet
Industrial Supply Center Yorktown, 
February 2001,
wit:

at Jacksonville, FL, operate a vehicle, to

a passenger car, after consuming alcohol.

on or about 2

.  

.  

.

On that same day, Petitioner was advised that NJP action had been
initiated for the foregoing offense.
Petitioner elected to waive his right to demand trial by 
martial and accept NJP, Commander (CDR; O-5) R, the commanding
officer (CO) of the NAVCHAPGRU,
suspended reduction in rate,
forfeiture of $827 pay per month for
two months and 45 days of extra duties.
that he had the right to appeal the NJP, Petitioner declined to
do so.

imposed NJP consisting of a

On 1 March 2001, after

After being notified

court-

j-

Petitioner then received an adverse performance
evaluation for the period 2 November 2000 to 1 March 2001.
That
report assigned the worst possible mark of 1.0 in the category of
bearing/charactern and noted that Petitioner had been
"military 
"awarded 
(alcohol incident)," and
requirements as set forth in 

CO's NJP for violation of UCMJ Article 92 on 

"has failed to meet Alcohol Rehab

OlMAROl

UCMJ.oo

k. On 16 April 2001 a Navy psychologist reported that
Petitioner had been diagnosed with "alcohol dependence in
sustained partial 
participation in a relapse prevention workshop, to be followed by
a period of continuing care.

The psychologist recommended

remission.oo

1. On 11 May 2001, through counsel,

Petitioner submitted a

complaint of wrongs under UCMJ Article 138 against CDR R.
In
that complaint,
he made a number of allegations, including a
"the command has absolutely no evidence . . .
contention that
that there was a violation of a general order or regulation
counsel elaborated on this
coZntion  as follows:

In a separate submission,

'I

(T)here is no notification of any type or (sic) law or
regulation in the specification.
violation of operating a vehicle to wit: a passenger car,
after consuming alcohol.
has had a glass of wine at a dining-in or dining-out, or
even at a unit picnic,
and then drove to their quarters,

. there is no
If this were the case, anyone who

Also, 

.  

.  

3

where ever they 
general law or regulation.

misht be, would be in violation of 

some

m. On 14 June 2001 administrative separation action was

the recorder noted that Chief of Naval

initiated against Petitioner by reason of alcohol rehabilitation
In his closing argument at the ensuing administrative
failure.
discharge board (ADB),
Operations Instruction (OPNAVINST)  
responsibility means no drinking and driving."
all of the evidence, the ADB found that Petitioner was a
rehabilitation failure, but recommended his retention in the
ADB's recommendation, but on
Navy.
2 August 2001, the chief of Naval Personnel directed that
Petitioner be retained and warned concerning the consequences of
further deficiencies in conduct or performance.

CDR W did not concur with the 

After considering

5350.4C states 

oopersonal

n. On 5 February 2002 the general court-martial convening

authority (GCMCA), Commander, Naval Surface Force, Atlantic
Fleet, acted on Petitioner's complaint of wrongs under UCMJ
Article 138.
The GCMCA declined to act on Petitioner's specific
complaint about the NJP since applicable directives state that
such a disciplinary action is not a proper subject of an Article
138 complaint.
However, the GCMCA noted that the comments in the
adverse performance evaluation pertaining to an 
incident" and 
requirementso  constituted
an "administrative inaccuracy," and had been removed in a revised
evaluation that had been submitted to the Navy Personnel Command
(NAVPERSCOM).
Petitioner was notified of this action by separate
correspondence.
General for final action.

The case was forwarded to the Judge Advocate

ooalcohol rehabilitation 

ooalcohol

o. On 23 April 2002 Petitioner reenlisted for two years.
p. On 21 June 2002 the Deputy Assistant Secretary of the

Navy (DASN) for Personnel Programs took final action on
Petitioner's Article 138 complaint as follows:

.  

.  

. I have determined that the action of the (GCMCA)

is not correct, and I do not approve it.
OONOV02'  to 

OlMAR15, as corrected by the (GCMCA),
refers to the results of (NJP) where the charged

deiekination that your Evaluation Report for the reporting
period 
of;ense does not state an offense under the UCMJ.
Accordingly I am directing that the evaluation be removed
from your record.
By copy of this letter (NAVPERSCOM) is
directed to ensure this action is carried out.

It is my

In a memorandum of 28 October 2002,a representative of the
Administrative Law Division (Code 13) in the office of the Judge
Advocate General (JAG) explained the foregoing decision as
follows:

. (Petitioner) was awarded (NJP) for violation of
&icle 92, (UCMJ), Failure to Obey a Lawful Order or

4

the specification did not allege any
Regulation. However,
order that was violated, and only describes that conduct
that was allegedly the violation-(driving after consuming
While the UCMJ contains a specific article
alcohol).
making driving under the influence of alcohol unlawful
(UCMJ Article 
a violation.

ill), (Petitioner) was not charged with such

p. OPNAVINST 

5350.4C sets forth binding guidance on the

prevention and control of alcohol abuse in the Navy.
of this directive states that violation of the regulation
subjects an individual to disciplinary action under the UCMJ.
Paragraph 
8n(d)(4) states that Sailors are responsible for
understanding individual responsibilities and supporting certain
alcohol abuse prevention principles, including 
%o drinking and
driving."

Paragraph 4

q. UCMJ Article  

92(1)2 states that it is an offense to

or beyond the authority of the issuing

violate or fail to obey a lawful general order or regulation. A
generalaorder  or regulation is lawful if it serves a military
purpose
and is not contrary to the Constitution, Federal law,
superior
8rders,
official.
However, not all provisions in general orders or
regulations are enforceable under Article 
those which only supply general guidelines or  
to be deemed enforceable, the regulation at issue 
intended to regulate the conduct of servicemembers.
Additionally, an order or regulation may be unconstitutional and
therefore invalid if it is deemed 
Finally, a
specification alleging a violation of UCMJ Article 
92(l) should
set forth not only the specific regulation the individual
violated, but also the pertinent paragraph or section of the
directive.'

92(l), specifically,

advice.5 In order

overbroad.

mtst be

r. UCMJ Article 

ill(2)' prohibits driving under the

influence of alcohol. The statute defines that offense as
operating a vehicle while drunk or when the blood-alcohol content
is 

container of an alcoholic beverage or consume an alcoholic
beverage while operating a vehicle in the state 

.  

.  

.  

I1

lawi' states that no person may 

o"possess an open

. 10 or higher.
S . Florida 

892(l) (West 1998).

S 

2 10 U.S.C.A. 
i Manual for Courts-Martial  
16c(l)(c).
16c(l)(e).

MCM, Pt. IV, 
z MCM,  Pt. IV,  
MCI-I, App. 23, 

¶ 
I 
1 16.

7 5 David A. Schleuter
;fa, at 73  (1999).
1 
MCM, Pt. IV, 
911(2) (West 1998).
s 
S 316.1936(2(a).

TolO U.S.C.A. 
FLA. STAT. 

16f(l).

(MC&f), Pt. IV, 11 

16c(l)(c), 

14c(2)(a).

I NILITARY CRIMINAL JUSTICE Practice and Procedure 

S2-

5

l-4 

Cr- w l
Lz-!+f
Division (Code 20) opined, in essence, that Petitioner's NJP was
legally unobjectionable. However,
after Code 13 submitted its memorandum.
November 2002, Code 20 opined, in part, as follows:

further input was requested

Accordingly, on 26

_ 

1

”

 

 

.

*  

.

. 

(OPNAVINST 

5350.4C) if it were

(Florida law) makes it unlawful

alcoholic beverages while operating a motor
the state of Florida.
5350.4C), as
acts committed in the state of Florida, is on
directive to obey the law.

(1)f analyzed in the same fashion which an appellate
&iminal court would analyze (OPNAVINST  
the subject of a court-martial conviction, the regulation
purports to criminalize conduct which is already
criminalized by state law.
to consume
vehicle in
applied to
its face a
Commanders may not issue an order requiring a member of his
command to obey the law and then punish the service member
for both the substantive violation of the law and for
disobedience of the  
order."
specifically states,
"Personal responsibility means no
no drinking to the extent that it
drinking and driving,
impairs judgment, no public drunkenness, and  absolute
compliance with local laws for purchase possession and use
In addition, paragraph 8n is
of alcoholic beverages."
arguably overbroad in that it may apply to activities not
related to a valid military purpose and was not intended to
constitute a punitive order.
(T)his section of the instruction can be construed as 
non-
punitive, overbroad, and devoid of proper military purpose
by simply extolling service members to obey the law.
These
potential deficiencies would render this portion of the
instruction invalid if it served as the basis for
disciplinary

action pursuant to UCMJ Article 92.

(italics in text)

(OPNAVINSST 

5350.4C)

CONCLUSION:
Upon review and consideration of all the evidence of record, the
Board concludes that the NJP of 1 March 2001 should be removed
from Petitioner's record.
In this regard, the Board notes that
Codes 13 and 20 of JAG now agree that the NJP imposed on
Petitioner is legally objectionable.
Although each code has a
somewhat different reason for its conclusion, the Board sees no
need to parse these specific rationales, and elects to simply
concur that the NJP should not remain in Petitioner's 
record.12

11 Citing  United States v. Padgett, 48  
l2 Although the performance evaluation for the period 2 November 2000 to 1
March 2001 references the NJP and is on the microfiche record provided by the
Bureau of Naval Personnel, the Board took no action on this evaluation since
its removal has already been directed by the 21 June 2002 memorandum of the
DASN.

M.J. 273 (1998).

6

RECOMMENDATION:

a. That Petitioner's naval record be corrected by removing all

references to the NJP of 1 March 2001.
include, but not necessarily be limited to, the following
actions:

This correction should

1. Removal of all Administrative Remarks (page 13) entries
dated 1 March 2001.
2. Removal of the Report and Disposition of Offenses
(NAVPERS 1626-7) dated 28 February 2001.
3. Removal from paragraph 
Id of the CO, NAVCHAPGRU letter
of 23 July 2001, the following words and figures: 
March 1, 2001, found guilty of Article 91 Failure to Obey
and (sic) order or  
4. Removal from the summary of Petitioner's testimony at
the ADB, the following:

regulation.oo

"NJP-

BM2 says he asked for a court martial vice NJP for 111.
Before mast Chief Delmotte told (Petitioner) that he
would get a waiver for the admin board CMC told
(Petitioner) that the last guy this happened to got a
waiver.
a waiver.
the CO changed the charge to Article 92. At 
BM2 admitted to drinking and driving. BM2 told the CO
he was guilty

BM2 went to mast believing that he was getting
The Chief Master at Arms on the direction of
CAPT's mast

"In 

BMl Mill's testimony at the
CAPT's Mast, CO
Could have been the standard procedure
about.oo

5. Removal from the summary of 
ADB, the following words and figures: 
mentioned waiver.
the CO was talking 
6. In section 6H of the 16 April 2001 Patient Assessment,
delete the word 
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.

o"threeoo and substitute the word "two."

c. That any material directed to be removed from Petitioner's
for retention in a confidential file
with no cross reference being made a

naval record be returned to the Board, together with a copy of
this Report of Proceedings,
maintained for such purpose,
part of Petitioner's naval record.
4. It is certified that a quorum was present at the Board's
review and deliberations,

and that the forgoing is a true and

7

complete record of the Board's 
matter.

proceedinqs in the above entitled

ROBERT D. ZSALMAN
Recorder
5. Pursuant to the delegation of authority set out in Section 
of the Procedures for the Board for Correction of Naval Records
(32 Code of Federal Regulations, Section 
723.6[e]), and having
ensured compliance with its provisions, it is hereby announced
taken under the provisions
that the foregoing corrective action,
of reference (a), has been approved by the Board on behalf of the
Secretary of the Navy.

ALAN E. GOLDSMITH
Acting Recorder
Se

W.DEAN P