DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TAL
Docket No: 4933-11
31 August 2011
From: Chairman, Board for Correction of Naval Records
To: Secretary of the Navy
Sub]: REVIEW NAVAL RECORD OF
Ref: (a) 10 U.S.C. 1552
Encl: (1) DD Form 149 with attachments
(2) Case summary
(3) HOMC JAM1 memo dtd 8 Aug il
(4) Subject's naval record (CD)
1. Pursuant to the provisions of reference (a), Petitioner, a
member of the Marine Corps, filed enclosure (1) with this Board
requesting the removal of all adverse material from his Official
Military Personnel File (OMPF) regarding a nonjudicial punishment
(NSP) dated 21 January 2011.
2. The Board, consisting of Mr. Sproul, Mr. McBride and Ms.
Wilcher, reviewed Petitioner's allegations of error and injustice
on 24 August 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.
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 in a timely manner.
c. Petitioner enlisted in the Marine Corps on 26 May 2006 and
is currently serving on active duty.
ad. Petitioner received NJP on 21 January 2011, for two
instances of disobeying a lawful general order (II Marine
Expeditionary Force (MEF) Drive Safe Order) operating vehicle
under the influence of alcohol, and speeding. The punishment
imposed was reduction in paygrade to E-3, forfeiture of $961 pay
per month for two months and restriction and extra duties for 45
days. The punishment was suspended. He appealed the NUP as
being both unjust and disproportionate to the offenses allegedly
committed. The appeal was denied on 11 March 2011.
e. The appeal was not submitted for a legal review prior to
its denial. Pursuant to the Manual for Courts-Martial, Part V,
para. 7(e), if an officer imposing NUP, awards more than 14 days
of restriction, 14 days extra duties, forfeiture of more than
seven days pay or reduction of one or more pay grades from the
fourth enlisted pay grade, and the accused appeals his punishment
as either unjust or disproportionate to the offense committed,
then a legal review must be completed prior to action being taken
on the appeal by a superior commander. All of the punishments
imposed on Petitioner at his NJP were in excess of those that
would require a legal review of the NJP once appealed. There was
no legal review by a judge advocate on his NUP before his appeal
was denied.
£. Petitioner was alleged to have violated the II MEF Drive
Safe Order by operating a vehicle while under the influence of
alcohol and speeding. However the II MEF Drive Safe Order does
not discuss the operation of vehicles after the consumption of
alcohol nor does it discuss speeding. It should be noted that
Article 111 (Drunken Operation of a Vehicle), Uniform Code of
Military Justice (UCMJ) prohibits operation of a motor vehicle on
a military installation if the servicemember’s blood alcohol
content (BAC) is equal to or exceeds .10 grams of alcohol per 100
milliliter of blood. His BAC was registered at .07 and .06,
which are below the UCMd standard.
g. An advisory opinion (AO) from the Military Law Branch of
Headquarters Marine Corps (enclosure (3})) recommends that
Petitioner’s request be granted. In this regard the AO states,
in part, as follows: that Petitioner’s rights on appeal were not
satisfied and the NUP should be removed from his OMPF. The facts
alleged in the drunken operation of a vehicle charge do not
support that he violated the II MEF Drive Safe Order.
The AO recommends that his request to remove the 21 January 2011
NJP and from his OMFP be granted.
CONCLUSION:
Upon review and consideration of all the evidence of record, and
especially in light of enclosure (3), the Board concludes that
Petitioner's request warrants favorable action.
RECOMMENDATION:
a. That Petitioner's naval record be corrected by removing
the NJP dated 21 January 2011.
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. 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.
ROBERT D. ZSALMAN BRIAN J Caan) Hoge
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.
LD Nea. >
peseutave D
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