Dear This is in reference to your application for correction of your naval record pursuant to Title 10, United States Code, Section 1552. After careful and conscientious consideration of the entire record, the Board for Correction of Naval Records (Board) found the evidence submitted was insufficient to establish the existence of probable material error or injustice. Consequently, your application has been denied. Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel will not materially add to their understanding of the issues involved. Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of record. A three-member panel of the Board, sitting in executive session, considered your application on 30 July 2019. The names and votes of the members of the panel will be furnished upon request. 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, relevant portions of your naval records, and applicable statutes, regulations, and policies. The Board also considered the enclosed 30 January 2019 advisory opinion (AO) furnished by the Navy Personnel Command, Office of Legal Counsel (00J), which was previously provided to you, and your 28 July 2019 rebuttal. The Board carefully considered your request to be promoted to E-6, to remove your adverse evaluation and counseling records (Eval), to restore your Navy enlisted classifications (NECs) and (retroactively) special duty assignment (SDA) pay, and to grant any further relief deemed appropriate. (You also request that the Board further review your Article 138, Uniform Code of Military Justice (UCMJ), complaints. The Board, however, is not an investigative body. The function of the Board is to consider applications properly before it for the purpose of determining the existence of error or injustice in the naval records of current and former members of the Navy and Marine Corps, and to make recommendations to the Secretary or to take corrective action on the Secretary's behalf when authorized. The Board considered your contention that you were wrongfully charged by civilian authorities with driving under the influence (DUI), and that your command’s illegal actions punished you without justification and without due process of law. On 29 May 2016, you were arrested by civilian authorities and charged with DUI and improper lane usage. A preliminary breath test revealed your blood alcohol content to be 0.118%. You reported the incident to your command, as required by Navy policy. Due to your CO’s loss of confidence in you, your NECs as an instructor and as a recruit division director were removed, and your SDA pay was terminated. On 29 November 2016, you were issued a Page 13 counseling entry, notifying you that your advancement to E-6 was being withheld and advising you of your right to redress. Your reporting senior issued an Eval for the reporting period 12 May 2016 to 15 March 2017, documenting your loss of NECs due to the loss of confidence following your alcohol-related incident (ARI). On 2 May 2017, in state court, you were found not guilty of the DUI charge. On 22 May 2017, you submitted a request for redress, and your CO denied your request on 12 June 2017. You were issued an Eval for the reporting period 16 March 2017 to 2 May 2017 as a result of your CO’s removal of advancement recommendation, noting that the loss of promotion recommendation and trait of 1.0 was due to your personal, off-duty behavior. On 5 July 2017 you filed an Article 138, UCMJ, complaint against your CO. Your request for redress was denied due to your failure to seek written redress prior to submitting the Article 138, UCMJ, complaint. Your subsequent 19 July 2017 Article 138 complaint against your CO was also denied. The Board noted that there was a dispute as to when you were issued an Administrative Remarks (Page 13) entry notifying you that your recommendation for advancement had been withdrawn. A preliminary inquiry was conducted, but was unable to determine whether you were notified of the Page 13 before it was annotated with “member notified but refused to sign” due to administrative errors in documenting your notification. It was determined, however, to be a harmless error because you were not deprived of any administrative remedies. This specific Page 13 counseling is not in your official military personnel file. The Board noted the gravamen of your request is that you were found not guilty of the alleged offense. The Board, however, substantially concurred with the AO, noting that a civilian criminal trial and the administrative actions of your CO are separate and distinct, and neither is dependent upon the other for legitimacy. Further, your CO’s actions were administrative and not punitive in nature, and were based upon an assessment of your judgment and actions, and whether they comported with those expected from a member of the U.S. Navy. The Board determined that once the incident was reported, your CO had a responsibility, based upon the known facts, to determine whether you exhibited poor judgment, and whether the matter constituted an ARI. The Board concluded that your command’s documentation of your ARI did not depend upon or require a corresponding verdict from your civilian criminal trial. In doing so, the Board noted that the burden of proof in a criminal trial—beyond a reasonable doubt—is substantially higher than that required for an adverse administrative action, as here, and that a criminal court may only consider admissible evidence. The Board determined that you failed to substantiate that your command’s actions were illegal or that you were punished without justification and without due process of law. Thus, the Board concluded that, due to your CO’s loss of confidence, the resulting withdrawal of your promotion recommendation and removal of your NECs and SDA pay do not constitute a material error or injustice. The Board noted that the Page 13 counseling and Evals properly document your CO’s recommendation to withhold your advancement, and ultimately withdraw his promotion recommendation. The Board thus concluded that the documents were filed in accordance with Navy policy, and their removal is not warranted. 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 matters, which will require you to complete and submit a new DD Form 149. New matters are those not previously presented to or 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.