DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
701 §. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490
TAL
Docket No: 8352-12
1 November 2012
From: Chairman, Board for Correction of Naval Records
Les Secretary of the Navy
Ref: (a) Ld U.S.0.. 1552
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 Navy, filed enclosure (1) with this Board
requesting the removal of all adverse material from his Official
Military Personnel File (OMPF) regarding a nonjudicial
punishment (NJP) dated 20 October 2010. He also requested
restoration of his rank of EOD1 (paygrade E-6).
2. The Board, consisting of Mr. Zsalman, Mr. Exnicios and Ms.
Guill, reviewed Petitioner's allegations of error and injustice
on 24 October 2012 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 Navy and served without
disciplinary incident until 22 August 2010, when he was pulled
over for improper lane usage by the city police in Escondido,
California. He then failed a field sobriety test. He was
arrested and released on 22 August 2010 on his own recognizance
with a court date set for 7 October 2010. He states he notified
his chain of command of the arrest according to the requirement
under Operational Navy Instruction (OPNAVINST) 5350.4D NAVY
ALCOHOL AND DRUG ABUSE PREVENTION AND CONTROL. He also provided
his command with a copy of the police report and blood alcohol
content (BAC) documentation.
ad. On 20 October 2010, Petitioner received NUP for drunken
or reckless operation of vehicle. The punishment imposed was
reduction in rate from paygrade E-6 to E-5. He was advised of
his right to appeal the punishment and chose not to.
e. On 6 September 2011, during a training session the
executive officer recommended that if any command members had
been involved with self reporting charges, they should consult a
Judge Advocate General (JAG). Petitioner did consult a JAG and
was advised he had a good case ripe for an appeal in spite to
the five day limitation on NUP appeals. On 6 December 2011, he
submitted an appeal to his commanding officer. On 7 February
2012, the commanding officer responded in part that the request
exceeded the permitted NUP appeal timeframe allowed and
therefore he would not endorse and forward it up the chain of
command.
f. On 25 April 2012, Petitioner submitted a request to have
the NUP set aside citing the U.S v. Serianne (USCAAF, 4 MAY
2010) decision. On 1 August 2012, the commanding officer denied
Petitioner’s request to set aside the NUP, stating in part that,
his decision to award it for the incident was based on his
admitted arrest and the voluntary statement given to the command
after he waived his right to remain silent.
g. U.S. wv. Serianne ruled that any self reporting
requirement of any misconduct is in violation of the fifth
amendment’s protection against self incrimination .
CONCLUSION:
Upon review and consideration of all the evidence of record, and
especially in light of U.S. v. Serianne, the Board concludes
that there is an error and injustice, so Petitioner's request
warrants favorable action in the form of relief. The Board
particularly notes that there is no longer a requirement to self
report misconduct.
After careful and conscientious consideration of the entire
record, the Board concludes that Petitioner’s NIP of 20 October
2010 should be removed from his naval record.
RECOMMENDATION :
a. That Petitioner's naval record be corrected by totally
obliterating or removing the 20 October 2010 NUP along with all
associated documentation relating to it and that all property,
privileges and rights affected by it be restored. Specifically,
his paygrade of E-6 should be restored with his original date of
rank and effective date.
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. 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.
Tet DP, Fs
ROBERT D. 4SALMAN
Acting Executive Director
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