DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
CRS
Docket No: 2965-08
14 July 2008
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 9 July 2008. 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 Headquarters Marine Corps dated 24 April
2008, 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 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.
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, 5.
W. DEAN PF
Executive D Cor
Enclosure
DEPARTMENT OF THE NAVY
HEADQUARTERS UNITED STATES MARINE CORPS
3000 MARINE CORPS PENTAGON
WASHINGTON, DC 20350-3000
IN REPLY REFER To:
1070
JAM3
APR 2 4 cane
MEMORANDUM FOR EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF
NAVAL RECORDS
Subj: BOARD FOR CORRECTION OF NAVAL RECORDS (BCNR) APPLICATION
IN THE CASE OF CORPORAL Jebpiipldiiissstasasiinetdtemmecans ee
Ref: (a) Manual For Courts-Martial (2008 Edition)
(b) JAGMAN
1. We are asked to provide an opinion on CU,
(hereinafter Applicant) request to remove his 15 August 2006
nonjudicial punishment (NJP) from his Service Record Book (SRB) .
2. We recommend that Applicant’s request for relief be denied.
Our analysis follows.
3. Background
a. On 14 August 2006, Applicant was attached to 3rd
Battalion, 6th Marines, 2nd Marine Division, Camp Lejeune, North
Carolina. Applicant was arrested by civilian authorities for
driving his car under the influence of alcohol.
b. On 15 August 2006, the Commanding Officer, Lima Company,
3/6, imposed NUP upon Applicant for underage drinking in
violation of Article 92, and driving under the influence of
alcohol, in violation of Article 111, Uniform Code of Military
Justice (UCMJ). Applicant received 14 days restriction, 14 days
extra duties, and forfeitures of $333.00 pay per month for a
period of 1 month. The restriction and forfeitures were
suspended. Applicant did not appeal his NUP.
¢c. Applicant now requests that his NUP be removed from his
record stating that his driving while impaired charge was
dismissed by the civilian courts.
4. Analysis
a. As an initial observation, we note that no legal error of
occurred in the imposition of NUP. Applicant has provided no 1 ‘
credible evidence that his NUP was unjust. The Applicant x
voluntarily accepted NJP and was found guilty by his commander»
Based on the documentary evidence, Applicant was afforded his
Subj: BOARD FOR CORRECTION OF NAVAL RE
IN THE CASE OF 7@@e iii
USMC
CORDS (BCNR) APPLICATION
i
full procedural rights, including the Opportunity to consult
with an attorney. Applicant was informed of his right to refuse
NJP and to demand trial by court-martial. These procedural
rights are designed to ensure both fairness and finality in the
context of an administrative Process. The Applicant did not
appeal his NUP.
b. Nonjudicial punishment is an administrative proceeding,
not a criminal trial. Therefore, the formal rules of evidence
do not apply. The standard of proof at NUP is “by a
preponderance of the evidence” rather than “beyond a reasonable
doubt.” Applicant’s commander had ample evidence to impose NUP
as he was pending civilian charges for the same offense; charges
which were ultimately dismissed. This argument is without
merit. According to Part V, paragraph 1f£(5), of reference (a),
"Nonjudicial punishment may not be imposed for an offenses tried
by a State or foreign court unless authorized by regulations of
the Secretary concerned." The regulations of the Secretary
concerned are found in paragraph 0124 of reference (b), and are
triggered only after a person has been tried in state court.
Civilian court action is a viable and lawful option within the
discretion of a commander. Accordingly, no error occurred.
5. Conclusion. Accordingly, we recommend that Applicant’s
request for relief be denied.
6. This advisory opinion contains privileged attorney-client
work product and is provided solely to BCNR. Please contact the
Military Law Branch at (703) 614-4250, if you seek to release
° M . OS S
Deputy, Military Law Branch
Judge Advocate Division
By direction of the
Commandant of the Marine Corps
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