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

							HD: hd
									Docket No. 05704-06
										18 December 2006

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. You requested, in effect, that your naval record be corrected to show you did not decline promotion to lieutenant commander with a date of rank and effective date of 1 July 2005, but accepted it, and that your retirement on 1 October 2005 was in the grade of lieutenant commander.

A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on l4December2006. ~ 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 andpolicies. In addition, the Board considered the advisory opinions furnished by the Navy Personnel Command dated 15 September 2006 with reference (b) and 17 October2006, copies of which are attached. The Board also considered your letter dated 22 November 2006 with enclosures.

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 particularly noted that your letter of 15 July 2005 stated “...if the Navy intends to rescind [your] retirement orders unless [you] decline [your] congressional appointment to the next higher grade, then [you] decline [emphasis added] [your] appointment.” The Board found that it was your desire to have your retirement orders executed, and that you did have to decline promotion to avoid having the orders rescinded. The Board did not consider your declination on this basis to have been “under duress” for purposes of determining whether it was legally effective. The Board recognized that the quality of your service was not in dispute. The Board was unable to find the advice Captain M--- may have provided as to your probable assignment in the event you did not retire constituted threatening you. The Board noted that reference (d) to the advisory opinion dated 17 October 2006 is your letter of 18 June 2006 in support of your application (DD Form 149). Finally, the Board did not find Secretary of the Navy Instruction 1811.3M contrary to the United States Code by establishing a time in grade requirement for retirement in the grade of lieutenant commander.

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,

ROBERT D. ZSALMAN
Acting Executive Director

Enclosures