DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TUR
Docket No: 3389-11
12 May 2011
From: Chairman, Board for Correction of Naval Records
TO: Secretary of the Navy
Subj: REVIEW NAVAL RECORD OF ieee
Ref: fa) TO TS.c. Lose
Encl: (1) DD Form 149 with attachments
(2) Case Summary
(3) Subject's naval record
1. Pursuant to the provisions of reference (a), Petitioner, an
enlisted member of the Marine Corps, filed enclosure (1) with
this Board requesting that his naval record be corrected by
removing all references to the nonjudicial punishment (NIP)
imposed on 8 June 2007.
2. The Board, consisting of Messrs. Blanchard, Dunn, and Spain
reviewed Petitioner's allegations of error and injustice on 10
May 2011 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. In addition, the
Board considered the advisory opinion (AO) furnished by the
Marine Corps Military Justice Branch, Judge Advocate Division
(JAM2) dated 2 May 2011.
3. The Board, having reviewed all the facts of record pertaining
to Petitioner's allegations of error and injustice finds as
follows:
a. Before applying to this Board, Petitioner exhausted all
administrative remedies available under existing law and
regulations within the Department of the Navy.
b. Enclosure (1) was filed ina timely manner.
c. Petitioner received NJP on 8 June 2007 for wrongful use of
Dayquil an over-the-counter medication. The punishment imposed
was restriction and extra duty for 30 days.
d. On 18 March 2011 Petitioner’s current commanding officer
and the commanding officer who imposed the NJP recommended that
the it remain in the record. This recommendation further stated
that the offense for which he received NUP should be corrected
and/or changed to an Article 92 (“disobeying a lawful order”)
violation since the over-the-counter medication “Dayquil” is not
a controlled substance, and it does not apply to “‘Artielé 11l2a,
wrongful use, possession, etc. of a controlled substance” of the
Uniform Code of Military Justice (UCMJ). However, the letter did
not provide any legal authority for this recommendation.
e. An AO from JAM2 states, in part, that the NJP should be
removed from the record because Petitioner should not have
received it for using Dayquil as a violation of Article li2ga. It
further states that the offense of using Dayquil cannot be
corrected/changed to an Article 92 offense, as recommended by his
commanding officers, because he was never properly notified of an
Article 92 offense nor offered the opportunity to refuse NUP and
demand trial by court-martial for this offense.
CONCLUSION:
Upon review and consideration of all the evidence of record, and
especially in light of the AO, the Board concludes that
Petitioner's request warrants favorable action. In this regard,
the Board concludes that since the offense for which he received
NIP is invalid and that there is no legal authority to amend an
incorrect charge, all references in his record regarding it
should be removed or obliterated. In this regard, any and all
documents, to include, but not limited to, the unit punishment
book entry, administrative remarks entry, adverse proficiency and
conduct marks, and administrative separation documentation,
should be expunged from the record.
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 totally
obliterating or removing the 8 June 2007 NJP and all references
b. That any and all materials 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 materials 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. Pursuant to Section 6(c) of the revised Procedures of the
Board for Correction of Naval Records (32 Code of Federal
Regulations, Section 723.6(c), 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.
ER estes, Drorgr
ROBERT D. 4SALMAN BRIAN J. ‘GEORGE
Recorder Acting Recorder
5. Pursuant to the delegation of authority set out in Section
6(e) of the revised Procedures of the Board for Correction of
Naval Records (32 Code of Federal Regulation, Section 723.6(e))
and having assured compliance with its provisions, it is hereby
announced that the foregoing corrective action, taken under the
authority of reference (a), has been approved by the Board on
behalf of the Secretary of the Navy.
Las
Executive tor
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