DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
7015, COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490
TJR
Docket No: 9119-13
3 June 2014
From: Chairman, Board for Correction of Naval Records
To: Secretary of the Navy
Sa gee secce> or
Ref: (a) 10 U.S.C, 1552
Encl: (1) DD Form 149 with attachments
(2) Case summary
{3) Service record/cD
(4) HQMC JAM memo dtd 2APR14
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 record be corrected by removing
derogatory material regarding driving while impaired on or about
12 February 2011, which is reflected in the nonjudicial
punishment (NJP) imposed on 17 February 2011. This request
includes, but is not limited to, any/all documentation regarding
driving while impaired. Enclosures (1) through (3) apply.
2. The Board, consisting of Ms. Bianchi, Mr. Marquez, and Ms.
Montgomery, reviewed Petitioner's allegations of error and
injustice on 28 May 2014.and, pursuant to its regulations,
determined that the partial 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) provided by Headquarters Marine Corps (HQMC), Military
Justice Branch (JAM), Judge Advocate Division, a copy of which is
provided as enclosure (4).
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 12 February 2011 Petitioner was issued a traffic
citation by civil authorities for: driving while subject to an
impairing substance and failure to maintain lane control. On 14
February 2011, in military traffic court, he pled guilty to
impaired driving and his driving privileges aboard base were
revoked for a period of one year.
—.d...O0n 17 February 2011 Petitioner received NJP and pled
guilty to violation of Article 92 (failure to obey a lawful
order) by driving a vehicle while impaired on 12 February 2011)
and Article 111 (drunken or reckless driving) by driving a
vehicle while impaired. He did not appeal the NUP.
e. Petitioner asserts that on 29 September 2011 civil
authorities dismissed the 12 February 2011 charge against him.
f. In the AO from JAM, enclosure (4), it was recommended that
Petitioner's request be partially granted by redacting the
Article 92 (failure to obey a lawful order) offense because under
the Ultimate Offense Doctrine an order to not drink and drive,
does not create a new duty to obey the law. As such, the Article
92 offense was incorrectly applied in this case. Nevertheless,
the Article 111 (drunken or reckless driving) was correctly
applied since Petitioner was driving while subject to an
impairing substance and failed to maintain lane control.
CONCLUSION:
Upon review and consideration of all the evidence of record, and
especially in light of the AO from JAM, the Board finds the
existence of an error and injustice warranting partial corrective
action. In this regard, the Board concludes that the Article 92
violation inaccurately describes the offense for which Petitioner
was found guilty of and should be expunged from the record.
However, the Article 111 is administratively and accurately
correct as written and as such, the NUP should remain in the
record.
In view of the above, the Board directs the following partial
corrective action.
RECOMMENDATION:
a. That Petitioner's naval record be corrected by redacting
the 17 February 2011 NUP, Article 92 (Drove a vehicle while
impaired in Morehead City, NC at 0211, 12FEB11), from the
offenses block of the unit punishment book.
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.
d. That no further relief be granted.
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.
“2 ek D, Tne Rin eeeteeee
ROBERT D. 4ASALMAN
Acting Executive Director
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