DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
	WASHINGTON DC 20370-5100

		HD
Docket No. 09617-03
2 August 2004

This is in reference to your application for correction of your naval record pursuant to the provisions of title 10 of the United States Code, section 1552.

A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 29 July 2004. Your allegations of error and injustice were reviewed in accordance with administrative regulations and procedures applicable to the proceedings of this Board. Documentary material considered by the Board consisted of your application, together with all material submitted in support thereof, your naval record and applicable statutes, regulations and policies. In addition, the Board considered the advisory opinions furnished by the Navy Personnel Command dated 3 July 2003 and 21 April 2004 with reference (a) and (b), copies of which are attached. The Board also considered your letter dated 4 July 2004.

After careful and conscientious consideration of the entire record, the Board found that the evidence submitted was insufficient to establish the existence of probable material error or injustice. In this connection, the Board substantially concurred with the comments contained in the advisory opinions. The Board found the reporting senior’s endorsement on your rebuttal to the contested fitness report properly elaborated on her reference to ‘local law enforcement matters” to respond to issues raised by your rebuttal. While the endorsement, which covers two pages, exceeds the one-page limit set by Bureau of Naval Personnel Instruction 1610.10, enclosure (1), paragraph S-8.c, the Board did not consider this a material error warranting corrective action. The Board was unable to find the
endorsement, paragraph 3, was wrong in stating you were counseled. In this regard, the Board generally does not grant relief on the basis of an alleged absence of counseling, as counseling takes many forms, so the recipient may not recognize it as such when it is provided. Finally, the Board noted that you may ask the reporting senior to submit a letter-supplement correcting paragraph 1.b of the endorsement to show that your charge in April 2002 was ‘trespass” rather than ‘Harassment.” In view of the above, your application has been denied. The names and votes of the members of the panel will be furnished upon request.

It is regretted that the circumstances of your case are such that favorable action cannot be taken. You are entitled to have the Board reconsider its decision upon submission of new and material evidence or other matter not previously considered by the Board. In this regard, it is important to keep in mind that a presumption of regularity attaches to all official records. Consequently, when applying for a correction of an official naval record, the burden is on the applicant to demonstrate the existence of probable material error or injustice.

Sincerely,
Enclosures

3 Jul 03

MEMORANDUM FOR BCNR COORDINATOR (PERS-OOZCB)

Subj:	REQUEST FOR COMMENTS AND RECONMENDATION IN THE CASE OF

Ref: (a) PERS-OOZCB ltr of 30 Jun 03

1. In response to reference (a), I have reviewed the BCNR petition of subject-named Sailor.

2. It is entirely appropriate for this reporting senior to have been concerned about the Petitioner’s behavior and his disreputable contacts with civilian authorities, and to have reflected the poor judgment he felt that behavior evidenced in the evaluation. Moreover, I reject the insinuation in the petition that the alternative resolution settled upon by the civilian authorities for the charges is tantamount to a finding of not guilty; it is not. Nonetheless, I am obliged to agree with the Petitioner. Had the reporting senior confined himself to referring to the misconduct or even the involvement with authorities, i would endorse his evaluation. However, I interpret the phrase “resulting in several infractions” to be a reference to civil proceedings, which is proscribed by BUPERSINST 1610A0, Annex N, paragraph N-14 b.

3. I recommend that the error be corrected by affording the reporting senior an opportunity to reflect his concerns in the evaluation at in manner at does not reference the proceedings.

4. If I may be of and further assistance, please do not hesitate to contact me at