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

LCC
Docket No. 8499-05
20 Feb 07

This is in reference to your application for correction of your naval record pursuant to the provisions of 10 USC 1552.

A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on February 6, 2007. 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 opinion furnished by NPC memorandum 1430 Ser 4811E9/042, 23 January 2007, and a letter from Captain XXXX, US Navy, your Commanding Officer, at the time the recommendation for advancement was withdrawn, a copy of which is attached.

After careful and conscientious consideration of the entire record, a majority of the Board found that the evidence submitted was insufficient to establish the existence of probable material error or injustice.

The Board afforded the comments of your prior commander substantial weight. As can be seen from the enclosure, Captain XXXX relates that in 2003, he held a hearing and determined that you had engaged in conduct that created a destructive and unhealthy environment in your work center in violation of the UCMJ. Rather than imposing punishment (NJP), which was clearly an option that he had at the time, he elected to address your violations administratively without imposition of NJP. He later administratively withdrew your recommendation for advancement.

To be eligible for advancement you must have the recommendation of your Commanding Officer. Without such recommendation you cannot be advanced. You have argued that the evaluation that withdrew the recommendation for advancement was later removed from your record.

Docket No. 8499-05

However, as you well know, it was removed because it referred to the hearing described above as an “NJP” when, as pointed out above, Captain XXXX did not impose punishment. However, the removal of that evaluation does not operate to confer upon you a favorable recommendation for advancement. And, as can be seen by the attached letter, your Commanding Officer withheld his recommendation at the time and he has not changed his mind. The Board concurred with his recommendation at the time that you were “not ready for the leadership challenges of a First Class Petty Officer.

Accordingly, your application seeking advancement from the March 2003, Cycle 179, Advancement Exam 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 also 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.

Enclosures

2

DEPARTMENT OF THE NAVY
NAVY PERSONNEL COMMAND
5720 INTEGRITY DRIVE
MILLINGTON TN 38055~000O

1430
Ser 4811E9/ 042
23 Jan 07

MEMORANDUM FOR CONGRESSIONAL MATTERS (PERS-31C)

Subj: COMMENTS AND RECOMMENDATIONS IN THE CASE 

	  Ref: (a) BUPERSINST 1430.16E

End:	(1) BCNR file #08499-05
(2) Memorandum from Captain Dtd 06 Sep 06

1. Based on policy and guidelines established in reference (a), enclosure (1) is returned with the following comments.

2.     requesting reinstatement of his selection for ATO1/E6 from the March 2003 (Cycle 179) Navy-Wide Advancement Examination (NEW) due to his Special Evaluation report of O3MAR16-30JUN03 being removed from his official records. Per enclosure convey that it was only a administrative error on the Special evaluation which should not take away the determining factor that the member advancement recommendation was being withdrawn due to detrimental behavior and he should have been afforded the opportunity to correct the evaluation discrepancy. However, Pers-481 advancement recommendation can be solely based on the content of the Special evaualation being removed from the member official record.

3.	This is an advisory memorandum for the use by the Board for correction of Naval Records (BCNR) only. Point of contact is PSCS (SW/AW)	DSN 882-3238 or E-mail

 	Head Enlisted Career Progression
	(Pers-481)
By direction