DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
REC
Docket No: 00336-10
12 April 2010
From: Chairman, Board for Correction of Naval Records
To: Secretary of the Navy
Subj: REVIEW OF NAVAL OF RECORD q_ggMiggpE
Ref: (a).10 U.S.C. 1552
~ Encl: (1) DD Form 149 with attachments
(2) Case summary
(3) OJAG (Code 20) memo dtd 29 Mar 10
{4) Subject’s naval record
1. Pursuant to the provisions of reference (a),
Petitioner, an enlisted member of the United States Navy
Reserve, filed enclosure (1} with this Board requesting, in
effect, that the nonjudicial punishment (NUP) which
occurred on 16 August 2005, be removed from his service
record.
2. The Board, consisting of Ms. “ilies: , i°7" aii rand
MEER reviewed Petitioner's allegations of error
and injustice on 7 April 2010 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, and enclosures (1)
through (4).
3. The Board, having reviewed all the facts of record
pertaining to Petitioner's allegations of error and
injustice finds as follows:
a. Enclosure (1) was filed in a timely manner.
b. Petitioner enlisted in the Navy Reserve on
S
ii September 198° and is still serving. He served until
16 August 2005 without disciplinary incident. However, on
or about 1 May 2004, he violated a lawful general
regulation by wrongfully failing to promptly notify his
Commanding Officer of his arrest for an alcohol-related
offense by civil authorities. This resulted in him
receiving the contested NUP on 16 August 2005.
c. Enclosure (3) is an Advisory Opinion (AO) from the
Office of the Judge Advocate General (OJAG), recommending
that Petitioner’s request be denied. The advisory states
that he was found guilty at NJP for violating paragraph 8n
of the Chief of Naval Operations Instruction (OPNAVINST
5350.4), which requires that a Sailor report any alcohol-
related incidents to his chain of command. The AO notes
that a recent court decision (United States v. Serianne,
U.S. Navy-Marine Corps Court of Criminal Appeals (NMCCA
200900330)), found that this is unconstitutional as it
violates an individual’s Fifth Amendment right against
self-incrimination. However, the advisory states that the
court decision is not to be applied retroactively. The
advisory concludes that since his NUP occurred more than
four years ago, the court decision is not applicable to
him.
CONCLUSION:
Upon review and consideration of all the evidence of
record, and despite the unfavorable AO from OUAG, the Board
concludes that Petitioner's request warrants favorable
action. The Board finds that since paragraph 8n of
OPNAVINST 5350.4 was found unconstitutional, the NMCCA
decision should be applied retroactively.
Accordingly, the Board concludes that relief in the form of
removing the NUP from his service record is warranted. In
view of the foregoing, the Board finds the existence of an
injustice warranting the following corrective action.
RECOMMENDATION :
a. That Petitioner's naval record be corrected by
removing the NJP of 16 August 2005 from his service record.
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.
c. That any material directed to be removed from
Petitioner's naval record be returned to the Board,
together with a copy of 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. It is certified that a quorum was present at the Board's
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. ZSALMAN BRIAN A GEORGE
Recorder Acting Recorder
5. The foregoing report of the Board is submitted for your
review and action.
\p Deas
W. DEAN PPE
By directio
Assistant General Counsel
Manpower and Reserve Affairs)
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