DE?PARThkNT OF THE NAVY
FOR CORRECTION OF NAVAL RECORDS

BOARD 

2 NAVY ANNEX

WASHINGTON DC 20370-5100

TRG
Docket No: 5608-01
10 October 2002

Chairman, Board for Correction of Naval Records
Secretary of the Navy

CORD OF

(a) Title 10 U.S.C. 1552

(1) Case Summary
(2) Subject's naval record

From:
To:

Subj:

Ref:

Encl:

Pursuant to the provisions of reference (a), Petitioner, an

1.
enlisted member of the Navy,
requesting that his record be corrected by removing the
nonjudicial punishment  

filed an application with this Board

(NJP) of 1 March 2001.

The Board, consisting of Mr. Brezna, Mr. Kastner and Mr.

2.
Pauling, reviewed Petitioner's allegations of error and injustice
on 1 October 2002 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.

The Board, having reviewed all the facts of record pertaining

3.
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
reguiations within the Department of the Navy.

b.

Petitioner's application was filed in a timely manner.

C .

Petitioner reenlisted in the Navy for three years on 15

February 2002 after more than four years of active duty on a
prior enlistment.
assigned to the Naval Medical Clinic, Pearl Harbor, HI.

At the time of the NJP at issue, he was

d.

The clinic log shows that on 10 February 2001 Petitioner

reported for duty at 0805 with an odor of alcohol, and that a DR
M would perform a competence for duty examination.
of the examination, performed at 1000, Dr M stated that
Petitioner had used alcohol late into the previous evening and
had not had adequate sleep.
taken from Petitioner at this time.
Petitioner
clinic log, however, shows that at 1030, Dr W, apparently

It appears that a blood sample was
Dr. M then concluded that

\\was not competent or safe to stand duty  

today."

In his report

The

Petitioner's supervisor,
(he) is fit for 

duty."

"evaluated (Petitioner) and stated that

e .

A preliminary inquiry apparently was made into

allegations of Petitioner's misconduct.
inquiry, dated 27 February 2001,
Petitioner and a Ms. T was consensual, and alcohol was not
involved.

stated that interaction between

A supplement to that

f.

The court memorandum on file in the record shows that on

(UCMJ).

1 March 2001 Petitioner received NJP for two specifications of
failure to obey an order or regulations; and drunkenness and
being incapacitated for the performance of his duties; in
violation of Articles 92 and 134 of the Uniform Code of Military
Justice 
The charge of disobedience apparently resulted
from allegations that he improperly provided alcohol to Ms. T and
wrongfully interacted with her.
was 45 days extra duty,
reduction in rate from hospital corpsman third class (HM3; E-4)
to hospitalman (HN; E-3).
The performance evaluation for the
period 16 June 2000 to 28 February 2001 is adverse, with a 1.0
mark in the category of military bearing/character and comments
referencing the NJP and reduction in rate.

forfeitures of pay totaling $1386, and a

The punishment imposed at NJP

Q*

However,

Petitioner's appeal of the NJP is unavailable.

in his action denying the appeal, the Commander, Navy Region,
Hawaii, concluded that the commanding officer (CO) did not abuse
his discretion, and the punishment imposed was proportionate to
the offenses committed.

This action states, in part, as follows:

. 

. 

. Your first grounds' for appeal are moot because

. 
records indicate that though discussed, NJP was not
imposed for either providing alcohol to a minor or
soliciting an unprofessional relationship.

The record of proceedings supports

CO's determination that you committed the

. . . . Your CO did impose NJP for your incapacitation for
the performance of your duties through prior wrongful
indulgence in intoxicating liquor in violation of the
UCMJ, Article 134.
the 
misconduct charged.
supports that decision in confirming that the officer
on duty at the time of the misconduct removed you from
your primary official duties for a period of time based
on his determination that due to your voluntary
intoxication you were unfit to see patients.
This
action was supported by the fact that blood drawn three
hours after your reporting for duty showed that you
still had a blood alcohol level of  

Further, additional investigation

.07.

2

. 

‘

’ 

I

Since the NJP, Petitioner has served in an excellent manner and,
on 16 June 2002, he was readvanced to HM3.

h.

Concerning the two specifications of disobedience,

Petitioner states in his application that he was found not guilty
of those offenses but they appear on the NJP documentation filed
Concerning the incapacitated for duty
in his service record.
charge, he contends that he was mentally and physically capable
of performing his duties, was not asked to leave, and performed
his duties until the close of business.
Petitioner has submitted a statement from a petty officer second
class who states that the chain of events began in the morning of
10 February 2001 when a patient commented that Petitioner smelled
of alcohol.
However, he was not evaluated until 1030 because the
clinic was busy because of the USS GREENVILLE incident.
petty officer fu ther states that after Petitioner was found fit
for duty, he ret", ed to duty and worked the rest of the day.

In this regard,

The

'i,

Paragraph 76 of part IV to the Manual for C u ts-Martial
inczpzcitation

(MCM)'states that the elements of the offense of  
for performance of duties are as follows:

(1) That the accused had 

perform;

certain,duties  to

(2) That the accused was incapacitated for the

proper performance of such duties;

(3) That such incapacitation was the result of
previous wrongful indulgence in intoxicating liquor
any drug; and

(4) That, under the circumstances, the conduct

the accused was to the prejudice of good order and
discipline in the armed forces or was of a nature to
bring discredit upon the armed forces.

or

of

A person is unfit to perform duties if, at the time

"Incapacitation" is defined as being unfit or unable to perform
properly.
the duties are to commence, the person is drunk, even though
physically able to perform the duties.
intoxication which is sufficient to impair the rational and full
exercise of the mental or physical faculties.

"Drunk" means any

MAJORITY CONCLUSION:

Upon review and consideration of all the evidence
majority, consisting of Mr. Brezna and Mr. Kastner, concludes
that Petitioner's request warrants favorable action.
majority first notes that the appeal authority agrees with

The

  of record, the

3

I

J

Petitioner that
Therefore, that
from the court memorandum in the record.

NJP was not imposed for the disobedience charge.
charge and its specifications should be removed

.07 at 1030, it was inappropriate to

The majority also believes that despite the fact that Petitioner
had a blood alcohol level of  
impose NJP for incapacitation for duty.
alcohol when he reported for duty,
that Petitioner was unfit or unable to perform due to
drunkenness.
examination only because of a smell of alcohol on his breath.. At
no time was his performance of duty called into question.
Further, he was returned to his duties after the  fitness  for duty
examination, and apparently performed his duties until the end of
his shift.
Accordingly, the majority concludes that the NJP and
the related performance evaluation should be removed from
Petitioner's record.

Although he smelled of
the majority does not believe

He was referred for a competency for duty

In view of the foregoing,
injustice warranting the following corrective action.

the majority finds the existence of an

MAJORITY RECOMMENDATION:

a.

That Petitioner's naval record be corrected to show by
removing all evidence of the NJP of 1 March 2001 from his record.
This should include but not be limited to the following:

(1) The court memorandum  

(NAVPERS  

1070/607, dated 1 March

2001;

(2) The performance evaluation for the period 16 June 2000

to 28 February 2001.

b.

That Petitioner's naval record be further corrected to

show that he was not reduced from HM3 (E-4) to HN (E-3) on 1
March 2001.

c. 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.

d. That any material directed to be removed from

Petitioner's naval record be returned to the Board, together with
this Report of Proceedings,
for retention in a confidential file
maintained for such purpose,
with no cross reference being made a
part of Petitioner's naval record.

4

MINORITY CONCLUSION:

disagrees with the majority and concludes that

Petitioner's request only warrants partial favorable action.
minority member agrees that the court memorandum in the record is
in error because it states that Petitioner was found guilty of
the two specifications of disobedience.
verbiage should be removed.

Accordingly, that

The

Given the circumstances, Mr. Pauling concludes that

Nevertheless Petitioner was referred for a competency examination
shortly after reporting for duty,
and he did not provide  a blood
sample and was not otherwise evaluated until several hours later.
The minority believes that a blood alcohol level of  
.07 at 1000
shows that Petitioner was drunk when he reported to duty at about
0800.
Petitioner was incapacitated for duty as alleged, and the NJP
should not be removed from his record.
even after removal of the disobedience charge, the punishment
imposed was not overly severe and should not be changed since the
CO imposed that punishment only for incapacitation, and the
verbiage concerning disobedience was only included on the court
memorandum due to an administrative error. when he imposed the
reduction in rate.

He further concludes that

In view of the foregoing, the minority finds that partial relief
is warranted.

MINORITY RECOMMENDATION:

a.

That Petitioner's naval record be corrected by removing

the following words and figures from the 1 March 2001 court
memorandum (NAVPERS  
REGULATION 

1070/607); "92 (FAILURE TO OBEY ORDER OR

- TWO SPECIFICATIONS) AND"

b. That remainder of Petitioner's request be denied.

C . 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.

d. That any material directed to be removed from

Petitioner's naval record be returned to the Board, together with
this Report of Proceedings,
for retention in  a confidential file
maintained for such purpose,
with no cross reference being made a
part of Petitioner's naval record.

It is certified that a quorum was present at the Board's

4.
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.  
Recorder

ZSALMAN

H
.

Acting Recorder

The foregoing report of the Board is submitted for your

5.
review and action.

MAJORITY REPORT:
Reviewed and approved:

MINORITY
Rev>ewed

REPORT:

William A. Nava
Secre
Assistant 
(Manpower and Reserve Affairs)

vry of the Navy

Jr.