DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
JSR
Docket No: 4110-08
31 July 2008
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 31 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 from Headquarters Marine Corps dated 10 June
2008, a copy of which is attached, and your letter.dated 14 July
2008.
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.
The Board did not accept your unsupported assertion that the
tests on which the blood alcohol level cited in the contested
documentation were thrown out in court. In view of the above,
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. 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 PF
Executive D Cc
Enclosure
DEPARTMENT OF THE NAVY
HEADQUARTERS UNITED STATES MARINE CORPS
3000 MARINE CORPS PENTAGON
WASHINGTON, DC 20350-3000
IN REPLY REFER TO:
1070
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MEMORANDUM FOR EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF
NAVAL RECORDS
Subj: | APPLICATION. FOR CORRECTION IN THE CASE ORg_iiliiisl
Ref: (a) MCO P1070.13k (IRAM)
1. You requested we provide an advisory opinion <@igji@iiipepemace
Teeraes nereinafter “Applicant”) application requesting the
removal of adverse material from his Official Military Personnel
File (OMPF).
2. Opinion. We recommend that Applicant’s request for relief
be denied. Our analysis follows.
3. Background
a. On 4 August 2005, Applicant was arrested for driving
under the influence (DUI) on Interstate 95 in Prince William
County, Virginia. Upon testing, Applicant registered a .095
blood alcohol content (BAC). On 2 November 2005, Applicant pled
guilty to reckless driving and was ordered to pay $317.00 in
fines/costs and to attend the Alcohol Safety Action Program in
Manassas, Virginia.
b. On 21 December 2005, the Deputy Commandant for Manpower
and Reserve Affairs (DC M&RA), as the Show Cause Authority for
the Marine Corps, terminated administrative proceedings and
closed Applicant’s misconduct case and notified Applicant that
the adverse material regarding this incident would be included
in his OMPF.
4. Analysis. Applicant’s request for relief is based on his
belief that the inclusion of the adverse material in his OMPF
inaccurately suggests he had a DUI conviction. We disagree.
a. The reference specifically provides for the inclusion of
adverse material in an officer’s OMPF. Per the reference, each
officer’s OMPF includes a Commendatory/Derogatory Folder. This
folder contains various documents regarding civilian and
military education, personal awards information, courts-
martial/non-judicial punishments, and other material reflecting
significant personal achievement or adversity that is pertinent
to making decisions for purposes of selection, assignment, and
retention. Specifically, in accordance with paragraph
1000.4(2) (a) of the reference, cmc (MMSB) will file
correspondence containing adverse material that the Marine
reported on has had the opportunity to contest, explain, or
rebut, whether at a personal hearing or by statement, without
additional referral to the individual. This includes relevant
memoranda prepared at HOQMC resulting from official
correspondence sent to and received by the Marine reported on,
the reporting senior, or the reviewing officer. In this case,
Applicant received notification and copies of the specific
documents that would be included in his OMPF and was provided an
opportunity to submit a response to the adverse material. On 17
November 2005, Applicant acknowledged receipt of the report of
misconduct and indicated that he did not desire to submit
matters concerning the incident.
b. Applicant does not allege the adverse information he
requests be removed is inaccurate, but rather it inaccurately
Suggests he received a DUI conviction. The adverse materials
appropriately chronicle the Applicant’s initial incident and
subsequent actions taken in his civilian case pursuant to the
reference. Although the report reflects negatively upon
Applicant, it accurately states the facts and the chronology of
the case and the subsequent remedial actions taken by him.
These materials are appropriately included in his OMPF.
5. Conclusion. Accordingly, we recommend that Applicant’s
request to remove adverse material from his OMPF 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
any of this information.
G. L. SIMMONS
Head, Military Law Branch
Judge Advocate Division
By direction of the
Commandant of the Marine Corps
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