DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100

AEG
Docket No: 7359-02
27 January 2003

 

From: Chairman, Board for Correction of Naval Records
To: Chief of Naval Personnel

Subj: REVIEW OF NAVAL RECORD OF qi imeem,
eee:

Ref: (a) 10 U.S.C. 1552

Encl: (1) Copy of BCNR ltr of 8Jan03
(2) Copy of Memorandum for the Executive Director, BCNR

1. In accordance with reference (a), the Board for Correction of
Naval Records has reviewed allegations of error anda injustice in
Subject's naval record. The Board voted to deny relief, as
indicated in enclosure (1).

2. The designated representative of the Assistant Secretary of
the Navy for Manpower and Reserve Affairs has reviewed the
proceedings of the Board and disapproved the action of enclosure
(1). Enclosure (2) directs that corrective action be
implemented. It has been determined that such corrective action
should extend to the following:

a. Removal of all references in the record to the
nonjudicial punishment of 30 July 1999 including, but not
necessarily limited to, the Court Memorandum of that date.

b. Show that Subject was not reduced in rate from QM1 (E-6)
to QM2 (E-5) on 30 July 1999 but continued to serve in the
higher rate without interruption until his discharge on 20
August 1999,

c. Any material or entries inconsistent with or relating to
the foregoing corrective actions should be corrected,
removed or completely expunged from Subject's record, and
no such entries or material should be added to the record
in the future.

dad. Any material directed to be removed from Subject's naval
record should be returned to the Board, together with a
copy of this letter, for retention in a confidential file
maintained for such purpose, with no cross reference being
made a part of Subject's naval record.

Regulations approved by the Secretary of the Navy require that
Subject's naval record be corrected, where appropriate, in
accordance with the foregoing.

3. The Board has advised Subject and the Defense Finance and
Accounting Service of the designated representative's action.

4. It is requested that this Board be furnished a copy of any
correspondence relating to the action directed by enclosure (2).

ALAN E. GOLDSMITH
By direction
DEPARTMENT OF THE NAVY
OFFICE OF THE ASSISTANT SECRETARY
(MANPOWER AND RESERVE AFFAIRS)
1000 NAVY PENTAGON
WASHINGTON, D.C. 20350-1000

 

23 January 2003

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF
NAVAL RECORDS

Subj: PETITION ongggilililisaliaal

  

I have reviewed the decision of the Board for Correction of
Naval Records in the above referenced case. Pursuant to the
provisions of 10 U.S.C. 1552 and the authority delegated to me
by the Assistant Secretary of the Navy (Manpower and Reserve
Affairs), I have reopened and reconsidered the subject decision.

Based upon the particular circumstances of this case, I
have determined that relief should be granted. While the BCNR
has addressed the arguments raised in the petition ina
thoughtful manner, I find that the BCNR failed to place
sufficient weight on the mitigating circumstances in this case.
While I agree with the BCNR that the 29 June 1999 message from
CINCLANTFLT did not create any enforceable rights in favor of
the petitioner, it is my judgment, giving the petitioner the
benefit of the doubt, that an injustice did occur and that
relief should be granted.

Please take such action as is necessary to effect this
decision.
DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX

WASHINGTON DC 20370-5100
CRS

Docket No: 7359~02
8 January 2003

 

 

naval record pursuant to the provisions of Title 10, United
States Code, Section 1552.

your application, together with all material submitted in support
thereof, your naval record and applicable statutes, regulations
and policies.

punishment (NUP) for an unauthorized absence, apparently the two
days you spent in jail, and drunk ana reckless driving. The
punishment imposed consisted of restriction for 60 days and
reduction in pay grade from petty officer first class (QM1;E-6)
to petty officer second Class (QM2;E-5). on 20 August 1999 you
received an honorable discharge by reason of alcohol
served, and suspension of your driver’s license for 90 days.

The Board noted your contention that the NIP should be removed
from your record given the message of 29 June 1999 from the
Commander in Chief, Atlantic Fleet. That message reads in part,
as follows:

If a civil adjudication takes Place prior to
disciplinary or court-martial action, (the Manual of
the Judge Advocate General {JAGMAN}) is clear: Prior
permission of higher authority must be obtained before
the military charges can be tried by court-martial or
be the subject of NUP...

Because (the JAGMAN) applies only to cases in which
Civil authorities have already adjudicated the matter,
and not to cases yet to be adjudicated (i.e., where
charges are referred or a case goes to NJP prior to
civil adjudication) . There may be a temptation to
engage in a "race to the courthouse" and to convene

a court-martial or conduct NJP before civil
authorities prosecute the case. Such action is to

be avoided. For cases in which both civil and
military authorities have become involved, and in
which civil authorities have first assumed an interest
prosecuting the case, commanders should not take UCMJ
action unless civil authorities concur or permission
is granted by the officer exercising GCM jurisdiction
over the command. This policy is based upon the
principle of comity between the Federal government
and state/foreign governments and is not intended

to confer additional rights upon the servicemember.
This policy also efficiency coordinates use of
Federal/State resources.

However, the Board concluded that the foregoing message does not
warrant corrective action in your case. First, either the civil
authorities or the general court-martial convening authority may
have granted permission to the commanding officer to impose NJP.
Further, the message did not confer any right upon you not to
have NJP imposed, it only set forth a policy to efficiently
coordinate resources. Finally, the message only applies to
disciplinary actions taken for the same misconduct for which the
individual is pending charges in the civil courts. You, however,
received NJP not only for DUI but also for UA. Therefore, the
message did not apply to your case.

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

2
.

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