DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TUR
Docket No: 7595-10
15 April 2011
This is in reference to your application for correction of your
naval record pursuant to the provisions of Title 10, 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 12 April 2011. The names and votes of the
members of the panel will be furnished upon request. 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.
On 24 May 2004 you signed an agreement to serve and acknowledged
that you understood the Naval Academy degree requirements. The
agreement stated, in part, that should you voluntarily or because
of misconduct fail to complete the applicable period of active
duty incurred as a result of your graduation or disenrollment,
you would reimburse the Navy for the cost of the education
received at the Naval Academy.
You were commissioned in the Navy in the rank of ensign (paygrade
O1-E) on 23 May 2008 and began a period of active duty. At that
time you signed a Drug and Alcohol Abuse Statement of
Understanding acknowledging that such abuse violates standards of
behavior and duty performance, and would not be tolerated.
There is documented evidence in the record that reflects, in
part, that on 3 December 2008 you were “pulled over” by civilian
police for driving without headlights. An officer detected a
faint alcoholic odor and you stated that you had consumed four
beers an hour prior to driving. You had failed several field
sobriety tests and refused the administration of a breath test.
You were arrested and charged with driving under the influence
(DUL) of alcohol and driving without headlights and held in
confinement for 24 hours, pled no contests, and were sentenced to
a suspended driver's license for four months, 40 hours community
service, an $800 fine. The sentence included performing
probation via email for one year, participation in a ‘Victims’
Impact Panel,” attendance at a DUI driving school, and Level I
Aicohol Rehabilitation. Shortly thereafter, on 8 December 2008,
7. received nonjtdicial panishment (NJP) for physical control a
eyehicle while drunk [drunk or reckless driving]. The punishment
timposed was a writte admonition. You did not appeal the NUP and
ton 20 December 2008,' you submitted a statement regarding the
written admonition in which you accepted full responsibility for
your misconduct and further stated that such actions would not
happen again.
On 12 January 2009 your commanding officer provided the Navy
Personnel Command (NPC) with the details surrounding the
imposition of your NUP, and recommended that you not be required
to show cause for retention. However, on 9 June 2009, you were
notified that there was sufficient evidence in the record to show
cause for separation by reason of misconduct and substandard
performance of duty. In this regard, on 8 July 2009, you
submitted two statements of rebuttal in which you voiced your
concerns regarding the administrative separation processing,
requested retention in the Navy, and questioned the validity of
educational debt to the government. Presumably, your statements
were taken into consideration at all levels of review, but on 9
October 2009, NPC recommended that you be honorably separated by
reason of misconduct as evidenced by the DUI, and that your
educational expenses in the amount of $123,900.00 be recouped.
On 19 October 2009 the Assistant Secretary of the Navy
(ASN) / (Manpower and Reserve Affairs) approved the foregoing
recommendation for separation and a prorated cost for recoupment
of your advanced educational assistance. Subsequently, you were
advised of the foregoing action and that you would be contacted
by the Defense Financial Accounting System (DFAS) to arrange
recoupment payments. Shortly thereafter, on 30 November 2009,
you were honorably discharged by reason of misconduct.
The Board, in its review of your entire record and application,
carefully weighed all potentially mitigating factors, such as
your desire to remove the NUP and material pertaining to it,
change the narrative reason for separation or set aside the
discharge, and stop recoupment of your educational expenses. It
also considered supporting documentation submitted with your
application, to include statements from former servicemembers.
Nevertheless, the Board concluded these factors were not
sufficient to warrant relief because of the seriousness of your
misconduct as a commission officer in the Navy. Further, there
is sufficient documented evidence in the record to support an
administrative separation. Finally, the Board noted that Sailors
separated by reason of misconduct normally receive discharges
under other than honorable conditions, and as such, you were
fortunate to receive an honorable discharge. Regarding your
assertion that the only reason your command was aware of your DUI
was because of your self-admission, the Board concluded this was
unsupported. It also noted that when the self-admission
obligation was changed, it was not deemed to be retroactive.
Finally, the Board noted that this was your second alcohol -
related offense. Accordingly, your application has been denied.
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,
lo Dewsp
W. DEAN P
Executive Dilxe
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