DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
701 S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490
TIR
Docket No: 8365-13
2z2 May 2014
From: Chairman, Board for Correction of Naval Records
To: Secretary cof the Navy
iii, IT
Ref: (a) 10 U.S.C, 1552
Encl: (1) DD Form 149 with attachments
(2) Case summary
(3) Petitioner's naval record/cD
(4) HOMC MMER/ PERB ltr dtd 14AUG13
(5) HOMC JAM memo dtd 2APR14
(6) HOMC MIO memo dtd 30APR14
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 any and all derogatory material regarding. the
nonjudicial punishment (NJP) imposed on 17 September 2010 from
both his official military personnel file (OMPF) and the Marine
Corps Total Force System (MCTFS), where applicable. This
includes, but is not limited to any/all administrative remarks
(page 11) entries. Enclosures (1) through (3) apply.
Also, this request included removal of the fitness report
{(FITREP) for the period from 1 July to 16 September 2010, which
was removed as explained in enclosure (4).
2. The Board; consisting of Messts. Exnicios, Hedrick, and
Ruskin, reviewed Petitioner's allegations of error and injustice
on 20 May 2014 and, pursuant to its regulations, a 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 statues, regulations, and policies. In addition, the
Board considered the advisory opinions (AO) furnished by
Headquarters Marine Corps (HOMC) , copies of which are provided in
enclosures (5) and (6).
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. On 5 September 2010, Petitioner was charged by civil
authorities, of driving under the influence (DUI) of alcohol. As
a result, he independently self-reported this information to his
chain of command.
ad. Petitioner’s OMPF contains a unit punishment book entry
which notes that he received an NUP for an Article 92 (failure to
obey a lawful order) offense and an Article 134 (discredit upon
the Armed Forces) offense, which resulted from the 5 September
2010 civil charge of DUI.
e. An AO received from the HQOMC Military Justice Branch,
Judge Advocate Division (JAM), enclosure (5), regarding
Petitioner’s request to remove the NJP, page 11, and all related
references thereto, recommended relief be granted because he
self-reported that he was cited by civil authorities for DUI. As
such, and in accordance with regulations regarding self-
reporting, his commanding officer was not to impose disciplinary
action for a failure to self-report an arrest or criminal charge,
nor disciplinary action for the underlying offense unless such
action was based solely on the evidence derived of the self-
report. With that being said, the commanding officer did not
have the authority to impose NJP based solely on his self-
reporting. Further, imposition of the NJP violated Petitioner's
constitutional protection from self-incrimination. Finally, the
charges, Article 92 and 134 are erroneous in that the Ultimate
Offense Doctrine prohibits charging a violation of these articles
when another offense would have been more appropriate. In this
case, an Article 111 (drunken or reckless operation of a vehicle)
.offense would have been the more appropriate charge.
£. An AO received from the HQMC Manpower Information Quality
Assurance, Manpower Information Systems Division (MIQ), enclosure
{6), regarding Petitioner's request to remove the derogatory
material also recommended relief be granted. This AO concurs
with the legal opinion cited in the JAM AO.
CONCLUSION:
Upon review and consideration of all the evidence of record, the
Board concludes that Petitioner's requests warrant favorable
action. In this regard, the Board substantially concurs with the
comments contained in the AOs furnished by JAM and MIQ, and
concludes that the NUP, page 11, and all derogatory material
referencing them, should be removed from the record since they
were erroneously administered, written, and/or filed because they
were based solely on Petitioner's self-reporting of the DUI.
In view of the foregoing, the Board finds the existence of an
error and injustice warranting the following corrective action.
RECOMMENDATION:
a. That Petitioner's naval record be corrected by removing
and/or totally obliterating the NJP dated 17 September 2010 and
any/all page 11 entries, as well as all references thereto.
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.
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.
TR pee kD. Hann
ROBERT D. “4SALMAN
Acting Executive Director
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