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

	TRG
					Docket No: 4079-04
					 24 August 2005

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 23 August 2005. 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.

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.

You reenlisted in the Navy on 13 June 2001 as a petty officer second class (DK2; E-5). At that time you had completed over 17 years of active duty. Subsequently, you were advanced to petty officer first class (DK1; E-6).

Your performance evaluation for the period ending 15
November 2001 is excellent, with an individual trait average
(ITA) of 4.29 and laudatory comments. On 29 November 2001
you were awarded the Navy and Marine Corps Commendation
Medal.

On 11 January 2002 you reported to a new command. In the performance evaluation for the period ending 15 November 2002, you were assigned a marginal mark of 2.0 in military bearing/character because of your failure to meet weight standards. However, the ITA was an acceptable 3.29.

A performance evaluation was submitted for the period ending
30 September 2003 to document your reduction in rate to DK2.
In that evaluation you were assigned adverse marks of 1.0 in
5 categories, which resulted in an ITA of 1.57. The
evaluation comments noted a pattern of poor performance and conduct.

You received nonjudicial punishment (NJP) on 1 October 2003, The punishment imposed was the reduction in rate to DK2. You transferred to the Fleet Reserve in the rate of DK2 effective on 1 March 2004.

You have informed the examiner assigned to your case that you no longer have the NJP documentation in your possession. Additionally, efforts to obtain that documentation from your command have been unsuccessful.

You contend in your application that the NJP was based on a trumped up charge of larceny in reprisal for your complaints concerning fraternization and favoritism in the command. You further contend that the reduction in rate was too severe since you had to transfer to the Fleet Reserve as a DK2, which will have a substantial impact on your retired pay for the rest of your life.

The Board noted that you have not submitted any evidence to support your contention that the commanding officer abused his discretion when he imposed NJP, or that the punishment was not appropriate for the offense or offenses you committed. The Board also noted that you would have been given an opportunity to appeal the NJP, and you certainly would have done so if you believed that the NJP was unjustly imposed, or the punishment too severe. Further, if you believed the NJP proceedings were unfair, you could have requested that the charges be referred to trial by court-martial. Therefore, the Board concluded that, in the absence of any evidence to the contrary, the commanding officer did not abuse his discretion and the punishment imposed was not too severe.

Accordingly, 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,

W. DEAN PFEIFFER
Executive Director