DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No. 9097-18 Ref: Signature Date This is in reference to your application for correction of your naval record pursuant to the provisions of 10 USC 1552. Your case was reconsidered in accordance with procedures that conform to Lipsman v. Secretary of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004). You were previously denied relief by the Board on 24 May 2018. After careful and conscientious consideration 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. You requested the names and votes of the panel members who reviewed your previous application on 24 May 2018. The members were . They voted unanimously to deny relief in your previous application. A different three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 28 February 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 record and applicable statutes, regulations and policies. Additionally, the Board considered the advisory opinions contained in NPC (PERS 836) memo 5730 Ser/PERS-836/016 of 1 February 2018; NPC (PERS 91) memo 5730 Ser 91/004 of 5 February 2018; and NPC (PERS 95) letter 5740 Ser 95/1187 of 8 February 2018 as well as your responses to the opinions. The Board carefully considered your arguments that you were improperly discharged by the Navy for physical fitness assessment (PFA) failure and should have been processed through the Disability Evaluation System for your disability conditions. You also raised arguments that you were improperly denied personal awards by your command. Finally, you assert that you were denied replacement uniforms. Unfortunately, the Board disagreed with your rationale for relief. In making their findings, the Board again substantially concurred with the advisory opinion considered as part of your previous application. First, the Board concluded that you were properly processed for two Body Composition Assessment (BCA) failures in a two-year period. Records show that you failed BCAs in 2015 and 2016 with no evidence that a BCA waiver was granted until after you were notified of administrative separation processing on 9 September 2016. The Board noted the 16 September 2016 medical waiver but concluded it was issued well after you had failed two BCAs. While the Board acknowledges you continue to disagree with the Navy’s actions in your case, they felt the documentary evidence in your record supports the regulatory requirement for administrative separation processing for PFA failure. Second, the Board concurred with the rationale used by the previous board in denying your request for disability benefits. Again, the Board found no evidence of occupational impairment while you were on active duty or evidence your conditions were incurred or aggravated while on active duty. Absent evidence of unfitness for continued naval service, the Board concluded you did not qualify for military disability benefits. Third, regarding your complaints about the failure of your command to issue personal awards to you, the Board again agreed with the previous Board decision that concluded that a decision to either recommend or issue a personal award is entirely discretionary on the part of the awarding authority. The Board understands you felt your service was deserving of two Navy Achievement Medals but decided that the decision to award or recommend you for the award rests entirely with your command. Additionally, based on your inability to meet weight control standards and the command’s decision to administratively separate you on that basis, the Board felt it was reasonable to conclude that awarding a Navy Achievement Medal under those circumstances would be inappropriate and send the wrong message to the command, despite your otherwise deserving performance. Fourth, the Board considered your complaint regarding replacement of your uniform items. Commander, Navy Reserve Forces Command reported that you received uniform replacement items in 2012, 2014, and April 2016. It was also reported that your most recent claim for uniform items was being processed as of August 2016. Based on the Navy’s history of replacing uniform items in the years leading up to your discharge, the Board applied the presumption of regularity to reach the conclusion no error exits. Absent evidence the Navy failed in 2016 to replace uniform items in violation of Commander Navy Reserve Force Instruction 4001.1E, the Board concluded insufficient evidence of error exists on this issue. Accordingly, the Board found insufficient evidence of error or injustice to warrant a change to your record. The Board takes seriously your allegations you were mistreated by your command, as you allege, because of your race and could find no evidence to substantiate your claims. The Board disagreed with your assessment that your allegations were not thoroughly investigated. They noted that the Assistant Secretary of the Navy (Manpower and Reserve Affairs) reviewed your allegations of mistreatment based on your Article 138 complaint and found no merit to your allegations. Further, the Board also reviewed the multiple letters you submitted to the highest levels of our government including your congressional representatives. The Board was unable to find any evidence to substantiate the adverse personnel actions taken against you by the Navy were based on your race or any factor other than your inability to meet weight control standards. Regarding your request for a personal appearance, the Board again determined that a personal appearance with or without counsel will not materially add to their understanding of the issue(s) involved. Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of record. It is regretted that the circumstances of your reconsideration petition are such that favorable action cannot be taken again. You are entitled to have the Board reconsider its decision upon the submission of new 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 of an official naval record, the burden is on the applicant to demonstrate the existence of probable material error or injustice. Sincerely, 3/4/2019 Executive Director