DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TAL
Docket No: 847-10
29 October 2010
Ey
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 27 October 2010. 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.
After careful and conscientious consideration of the entire
record, the Board found the evidence submitted was insufficient
to establish the existence of probable material error or
injustice.
You enlisted in, the Navy and began a period of active duty on
15 August 2001 at age 19. On 12 June 2008, you were a selectee
for advancement to quartermaster first class (QM1) from
participation in the March 2008 Navy-wide examination. At that
time you were frocked and authorized to wear the uniform and
insignia of a QM1 without pay entitlement or allowances of the
pay grade. On 7 October 2008, you received nonjudicial
punishment (NJP) for failure to obey a lawful written order, by
not advising your command of civil charges for driving under the
influence of alcohol (DUI). The punishment awarded was
forfeiture of pay, which was suspended for six month, extra duty
for 45 days and removal of the frocked rank.
The Board, in its review of your application, carefully weighed
all potentially mitigating factors such as your overall record of
more than nine years of active service. Nevertheless, the Board
concluded these factors were not sufficient to warrant removing
the NOP. The U.S. Vv. Serianne, NMCCA 200900330, decision does
not state that it is to be applied retroactively. In Teague v.
Lane, 489 U.S. 288, court found that new constitutional rules are
not applied retroactively on collateral review. Your NUP was
final over two years ago, prior to the U.S. v. Serianne decision
and your petition to the Board is a request for retroactive
application of the findings. Additionally, the Board noted that
you did not appeal the NJP and concluded that its removal from
your record is unwarranted. 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
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