DEPARTMENT OF THE NAVY 

BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490 

YTC 
Docket No: 3046-17 I 
256-15 

OCT 2 g 2018 


Dear : 
This is in reference to your reconsideration request received on 31 March 2017. You previously 
petitioned the Board and were advised in our letter of 8 November 2016, that your application 
had been denied. Your request for reconsideration was reviewed in accordance with Board of 
Correction ofNaval Records procedures that conform to Lipsman v. Secretary of the Army, 335 
F.Supp.2d 48 (D.D.C. 2004). After careful and conscientious reconsideration of the entire 
record, the Board found the evidence submitted was insufficient to establish the existence of 
probable material error or injustice. Consequently, your application has been denied. 

Because your application was submitted with a new assertion and new evidence that were not 
previously considered, the Board found it in the interest ofjustice to review your most recent 
application based on the new basis ofinjustice. In this regard, your current request has been 
carefully examined by a three-member panel of the Board for Correction ofNaval Records on 
8 June 2018. The names and votes ofthe members ofthe panel will be furnished upon request. 
Documentary material considered by the Board consisted ofyour application, together with all 
material submitted in support thereof, relevant portions of your naval record and applicable 
statutes, regulations and policies, and administrative record of previous petitions to the Board. 

In your current request, you ask for the names ofthe three Board members seated on the 

30 March 2016 panel that considered petition NR20150000256. 
comprised the panel that recommended denying your previous petition. 
Regarding your request for a personal appearance, the Board determined that a personal 
appearance with or without counsel will not materially add to its understanding ofthe issue(s) 
involved. Therefore, the Board determined that a personal appearance was not necessary and 
considered your case based on the evidence of record. 

Service Background. You began your Naval career on 18 June 1985, and served honorably for 
over 29 years. During your last period of active duty, Commander, 
initiated an investigation into Military Treatment Facility, USNS COMFORT, the 
command for which you were responsible, on the basis ofpoor command climate. The 
Investigating Officer (IO) found no misconduct and no disciplinary action was taken; 
nonetheless, the IO recommended that you be relieved ofcommand and reassigned. On 
26 August 2013, Commander, MSC detached you from command ofMilitary Treatment Facility, 
USNS COMFORT. You immediately requested a copy ofthe IO's report (hereinafter "the 
Investigation"), which was the basis for the recommendation for your detachment for cause 
(DFC) and stated "I am not waiving my right to comment on any investigation or other 
information that is to be forwarded to Commander, Naval Personnel Command for inclusion in 

my official record." , JAGC, USN submitted an email to 
on your behalf in which he forwarded your response to the DFC 
and reserved "the right to respond to any subsequent adverse matter that is to be forwarded to 
COMNA VPERSCOM." 

You first received a copy ofthe Investigation on 3 September 2013. Based on email 
communications submitted by you, 1 it appears that MSC did not include a copy ofthe 
Investigation when it forwarded the DFC to Navy Personnel Command (NPC), BUPERS 834. 
NPC stated in an email dated 1 October 2013, that PERS-OOJ, which conducts the legal review of 
DFC submissions, requires a copy ofthe command investigation to be enclosed. On 2 October 
2013, MSC indicated by email that a copy ofthe Investigation would be provided to PERS 834. 

On 19 May 2014, a Board oflnquiry (BOI) met and considered in part the Investigation. The 
BOI unanimously determined that your performance was not substandard. On 31October2014, 
you retired from the Navy. 

Previous Board Petition and Decision. On 4 December 2014, you submitted a request for 
correction to your record to the Board of Correction ofNaval Records (BCNR). BCNR 
subsequently requested an advisory opinion from NPC with respect to your allegations oferror 
and injustice. In April 2015, you provided BCNR with supplemental information relating to 
your former Executive Officer (XO) during your time on the USNS COMFORT. The XO 
provided a statement to the IO, which was included as part of the investigative report; the 
supplemental information noted that the XO benefited from your departure from the USNS 
COMFORT but that she ultimately was relieved ofduty for poor command climate. NPC 
provided BCNR an advisory opinion on 3 June 2015, and noted in part that you were given the 
opportunity to provide a response to your detachment for cause prior to the BOI. NPC 
concluded in part that you were aware that the Investigation would be used at your BOI. You 
take issue with NPC's conclusion and contend that neither you nor your counsel were aware that 
the Investigation would be considered by the BOI. 

The previous Board considered your request that all documents related to punitive or adverse 
information be removed from your service record, to include the 26 August 2013 DFC letter and 
attached documents, the status in the Navy document dated 21 May 2014, the DFC approval 
letter dated 2 January 2014, the report of the BOI date 19 May 2014, and your request for 
reinstatement to active duty, with implicit back pay and allowances for the period from your 
detachment until restorative action, and restoration to your position at ·commander Military 
Sealift Command prior to your detachment for cause in 2013. 

1 The emails of I October 2013 and 2 October 2013 are provided by you as new and material evidence for 
reconsideration in your current petition. 

The previous Board acknowledged your statement that you were not provided a copy ofthe 
Investigation until after the detachment request was made, but determined that notice of the 
request itself in conjunction with the presumption ofregularity, met the procedural requirements 
of MILPERSMAN 1611-020, Officer Detachment for Cause, paragraph 5. 

The previous Board found that even in light ofyour contentions and the information you 
provided in support of your request for relief, that your record did not contain an error or 
injustice that warranted removal of the detachment for cause, related negative or potentially 
adverse information, or reinstatement to your previous position within USNS COMFORT. 
Accordingly, your application was denied. 

Current Petition. Your current application requests reconsideration on the basis of"submission 
ofnew evidence not previously viewed by the Board." You provide new information that you 
obtained through a Freedom of Information Act (FOIA) request. The new information includes 
an email dated 2 October 2103 from MSCHQ, N02 to C 
BUPERS/NPC, PERS-834 that states you were provided a complete copy ofthe 
investigation via your attorney and that you had until 27 September to respond to the DFC. The 
email also states that MSC will upload the investigation to PERS-834's "safe site." You contend 
that the 2 October 2013 response to the 1 October 2013 request for the investigation establishes 
that the investigation was forwarded for consideration without your knowledge and without you 
having the opportunity to provide a rebuttal. You contend that the information refutes the 
presumption ofregularity and establishes that your right to due process was violated when the 
investigation was provided to PERS 834 in October 2013. 

In your request for reconsideration, you state that although reinstatement may not be within the 
purview ofthe Board, you infer that you would like your current petition to encompass your 
requests for corrective action as detailed in petition NR20150000256. You again assert that you 
were denied your right to due process when Commander, Military Sealift Command did not 
permit you to rebut adverse material. 

With regard to your assertion that the Investigation would not be part ofthe material considered 
in the DFC and BOI processing, you contend that the presumption of regularity, as applied by the 

previous Board, is overcome by the copies of written communication between MSC legal and 
and
your attorney and the email between . (reference (17) ofBCNR 

petition). You state that the written communication and the email establish that the Investigation 
was not being considered, and yet, unbeknownst to you, 'it was reviewed. You also reiterate that 
the NPC summary opinion provided to the Board "falsely stated that I did have the opportunity 

to respond, as per communication with MSC Chief ofStaff, 

." 
Board's Reconsideration. The Board considered that you again request that all documents 
related to punitive or adverse information be removed from your service record, to include the 
26 August 2013 detachment for cause letter and attached documents, the status in the Navy 
document dated 21 May 2014, the detachment for cause approval letter dated 2 January 2014, the 
report ofthe BOI date 19 May 2014, and that you indicate you would like to be reinstated to 
active duty, with implicit back pay and allowances for the period from your detachment until 
restorative action, and restoration to your position at Commander Military Sealift Command 
prior to your detachment for cause in 2013. 

The Board, in its review ofyour entire record and application, carefully weighed your assertions 
and contentions, the new and material evidence provided, and potentially mitigating factors. 
The Board considered your record, your original request for corrective action along with your 
contentions and assertions oferror and injustice. The Board also noted that you take issue with 
the application ofthe presumption ofregularity by the previous Board in that "specific details of 
that actual direct evidence" were not included in its opinion. The Board individually reviewed 
the following contentions contained in your request for reconsideration: 

(I) Commander, Military Sealift Command violated your right to due process, specifically in 
that you were denied the right to rebut adverse information (including the IO 
Report/Investigation); 
(2) You not afforded the right to rebut adverse information prior to NPC's decision to 
approve Commander, Military Sealift Command's request for a DFC and BOI, and 
THUS suffered abuse; 
(3) You were deprived ofthe opportunity to rebut the relief and investigation 
(4) The "new evidence" provided for reconsideration supports establishing the denial ofdue 
process 
(5) The communication between MSC legal and your attorney indicating that the 
investigation used as justification was not going to be forwarded for consideration, 
thereby overcoming the presumption of regularity; 
(6) NPC's summary states you had the opportunity to respond-which you contend is false 
(7) That the following be noted: that you responded to the DFC, asked to be notified of 
forwarding the investigation to NPC, so that you could respond/rebut the investigation to 
NPC ifthe investigation was so forwarded 
(8) The one-day tum around establishes that you were not given the opportunity to respond 
to the investigation to NPC 
(9) MSC provided different information to him than it did to NPC concerning the DFC, 
which was negligence on the part of MSC 
(I 0) 
MSC was also negligent because it provided the information to the Show Cause 
Authority in its original communication 


(11) 
The Show Cause authority did not have your extensive rebuttal, which contains 
significant evidence that the "facts" gathered by the IO were grossly erroneous 
(12) 
MSC contradicts itself by (1) stating the investigation would not be used/provided to 
NPC, and (2) by telling NPC that you did not provide a rebuttal within the allotted time 
The Board considered whether MSC violated your due process rights when it initiated and 
recommended the DFC proceedings against you. The Board noted that MILPERSMAN 1611020 
requires that "all bases for DFC must be adequately supported by an appropriate 
investigation." The Board found that the Investigation met the procedural requirement of 
MILPERSMAN 1611-020 and served to support MSC's request for the DFC. The Board noted 
that MILPERSMAN 1611-020 delineates seven steps and accompanying actions for a DFC 
request. The Board concluded that MSC met the procedural requirements under MILPERSMAN 
1611-020 when it requested the DFC, and the Investigation was regulatory requirement ofthe 
governing guidance. The Board noted that the Investigation itself was appropriate for 
consideration in the DFC request and determination. The Board separately considered your 
assertion ofa material error and injustice due to you not being given notice of its inclusion in the 
matters forwarded to NPC. 

Current Board's Findings. The Board determined that the emails you provided are new and 
material, and should be taken into consideration when applying the presumption of regularity and 
making factual determinations relevant to your claims ofdue process violations and negligence 
on the part of Military Sealift Command. The Board noted that you again seek the removal of 
information relating to the DFC, Show Cause Proceedings, and other documents relating to your 
status in the Navy following the completion ofthe investigation. The Board considered that the 
crux of your claim for reconsideration rests on whether you were wrongfully denied your right to 
rebut the Investigation during the DFC approval process and the Show Cause determination to 
include the BOI. · 

First, the Board found that MSC acted within its authority as the superior command when it 
initiated an investigation into the command climate at Military Treatment Facility, USNS 
COMFORT. The Board concurred with the previous Board's findings regarding the IO and his 
execution ofthe Investigation. The Board again found that Commander, Military Sealift 
Command had authority under MILPERSMAN 1611-020 to find that your absences along with 
other leadership choices made by you, impacted the command climate and were sufficient 
grounds for the recommendation that you be detached for cause. Additionally, the Board found 
that the Investigation itself complied with MILPERSMAN 1611-020' s requirements of a report 
on which the DFC recommendation was based. 

Second, the Board found the emails you submitted for reconsideration persuasive and determined 
that the DFC recommendation was forwarded to NPC without the Investigation. Furthermore, 
the Board found that the emails establish that a copy of the Investigation was requested 'for 
review by PERS OOJ, during the review ofthe DFC recommendation and prior to the approval of 
the DFC, and before the determination on the Show Cause proceedings. 

The Board noted your assertion that NPC' s statement that you were fully aware that the 
Investigation would be part ofthe DFC and Show Cause determination (and BOI), is inaccurate. 
Based on the timing of MSC's email response of 2 October 2013 agreeing to provide the 
Investigation to NPC, the documents you provided to establish that you communicated to the 
command that you wished to be aware of information being considered in the DFC 
determination, and your statements in your petition, it appears that you may not have had 
visibility on the Investigation's submission to NPC as part ofthe DFC review. The Board 
determined however, that the submission ofthe Investigation in conjunction with the DFC was 
not a material error nor did it create an injustice that merits corrective action. The Board noted 
that the Investigation appears to have been requested for purposes ofreview by PERS OOJ. The 
Board found a review by PERS OOJ of the Investigation, was appropriate as part ofthe predecisional 
review ofNPC's staff prior to the final decision by NPC on your DFC or Show Cause 
proceedings. The Board noted that the request for the Investigation appears to have been made 
for purposes ofthe legal review, and not necessarily for review by NPC. Nonetheless, even 
assuming that the Investigation was submitted to the approving authority in conjunction with the 
DFC recommendation, the Board determined that your due process rights were not violated 
because you were aware ofthe Investigation, had a copy ofthat Investigation prior to the 
approval, and knew or should have known that MILPERSMAN 1611-020 authorized the use of 
an investigative report as the basis for a DFC request. Additionally, the Board determined that 
the approval ofthe DFC was neither erroneous nor unjust because your superior command's 
recommendation for DFC alone, absent the Investigation, was sufficient to support the approval 
of the DFC and the initiation of Show Cause proceedings. 

The Board determined that the BOI itself afforded you the opportunity to rebut and confront the 
information in the Investigation. The Board determined that the favorable results at the BOI did 
not merit the removal ofthe paperwork related to the administrative DFC, Show Cause and BOI 
proceedings. The Board concluded that the administrative processes ofthe DFC, Show Cause 
recommendation, and BOI were executed in accordance with regulatory requirements and did 
not create an error or injustice in your record that merited removal ofany information from your 
official military record. 

It is regretted that the circumstances of your current reconsideration petition are such that 
favorable action cannot be taken again. You are entitled to have the Board reconsider its 
decision upon the submission ofnew and material evidence. New evidence is evidence not 
previously considered by the Board. In the absence of sufficient new and material evidence for 
reconsideration, the decision of the Board is final, and your only recourse would be to seek 
relief, at no cost to the Board, from a court of appropriate jurisdiction. 

It is important to keep in mind that a presumption of regularity attaches to all official records. 
Consequently, when applying for a correction ofan official naval record, the burden is on the 
applicant to demonstrate the existence ofprobable material error or injustice. 

Sincerely, 


Executive Director