DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
701 S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490
TAL
Docket No: 10227-12
2 November 2012
From: Chairman, Board for Correction of Naval Records
TO: Secretary of the Navy
Subj: REVIEW NAVAL RECORD > RPE NET NC
Ref: (a) 10 U.S.C. 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 (NUP) dated 29 March 2012. He also requested
restoration of his rank of HM2 (paygrade E-5).
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 on 11 February 2003 and
served without disciplinary incident until 29 March 2012. He
was arrested by civil authorities for driving under the
influence of alcohol. He states he self reported the arrest to
his chain of command according to the requirement under
Operational Navy Instruction (OPNAVINT) 55350.4D NAVY ALCOHOL
AND DRUG ABUSE PREVENTION AND CONTROL.
d. On 29 March 2012, Petitioner received NJP for failure to
obey a lawful order and driving under the influence. The
punishment imposed was forfeiture of one half month’s pay for
two months, 45 days restriction (suspended for six months), 45
days extra duty and reduction in rate paygrade from E-5 to E-4.
There is no record in his OMPF as to whether he filed an appeal.
e. On 3 September 2012, Petitioner submitted a request to
his commanding officer for review of the constitutionality of
his 29 March 2012 NUP citing the U.S. v. Serianne (USCAAF, 4 May
2010) decision. On 5 September 2012, the commanding officer
forwarded a recommendation to this Board to set aside his NUP.
f. U.S. v. 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 and the set aside letter
from Petitioner's commanding officer, 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 NUP of 29 March
2012 should be removed from his naval record.
RECOMMENDATION:
a. That Petitioner's naval record be corrected by totally
obliterating or removing the 29 March 2012 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-5 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.
2
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.
Brom Dray
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.
{or ROBERT D. ZSALMAN
Acting Executive Director
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