Docket No: 1221-20 
Ref: Signature Date 


Dear  
 
This is in reference to your application for correction of your naval record pursuant to Section 1552 of Title 10, United States Code.  After careful and conscientious consideration of relevant portions of your naval record and your application, the Board for Correction of Naval Records (Board) found the evidence submitted insufficient to establish the existence of probable material error or injustice.  Consequently, your application has been denied.    
 
A three-member panel of the Board, sitting in executive session, considered your application on 16 March 2021.  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.    
 
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. 
 
The Board carefully considered your request to remove all derogatory information pertaining to your court-marital or administrative separation, and your fitness reports for the reporting periods 1 October 2015 to 15 September 2016 and 16 September 2016 to 17 February 2017.  You also request to be reinstated to active duty, payment of back pay and allowances, credit for time in grade as an E-7 as of 18 February 2017, retirement plan options, opportunity for advancement to Senior Chief Petty Officer for Fiscal Year (FY) 2016, a final duty location option, and no break in service on your DD Form 214.  The Board considered your contentions that you were found not guilty and fully acquitted during your court-martial and the same evidence used at your court-martial was used against you during your administrative separation board.  You also contend that the Navy prosecutors and administrative separation board members failed to adhere to double jeopardy laws and ignored your Fourth and Fifth Amendment rights.  You claim that you were discharged using evidence that was thrown out at your court-martial and the use of the evidence was reprisal for not being punished at the court-marital.  You also claim that the Navy Discharge Review Board (NDRB) upgraded your discharge.  As evidence, you furnished a statement and correspondence from the NDRB.  
 
The Board noted that your administrative separation board found that the preponderance of the evidence proved that you committed misconduct and recommended your separation from the Navy with an “Under Honorable Conditions (General)” characterization of service.  The Board also noted that according to the Navy Military Personnel Manual (MILPERSMAN) 1910-142, separation for the commission of a serious offense does not require adjudication by non-judicial punishment or judicial proceedings, the offense must be substantiated by a preponderance of evidence.  Additionally, according to MILPERSMAN 1910-710, “If the administrative board finds a preponderance of the evidence supports one or more of the reasons for separation and recommends separation, the separation authority may approve the board’s findings and recommendations.”  The Board determined that your administrative separation board properly found that the preponderance of evidence substantiated that you committed the alleged misconduct and your separation authority approved the board’s findings and recommendations, according to regulations, as it was within his/her discretionary authority to do.  Moreover, the Board relies on a presumption of regularity to support the official action of public officers and, in the absence of substantial evidence to the contrary, will presume that they have properly discharge their official duties.   
 
Concerning your contention that your Fourth and Fifth Amendment rights were ignored, the Board determined that administrative separation boards are not judicial in nature, thus according to the Manual for Courts-Martial (2016 ed.) your Fifth Amendment rights against double jeopardy were not ignored.  Further, your administrative separation board was convened to determine your suitability for continued service.  The Board found no evidence that your Fourth Amendment rights were ignored or that your administrative separation board was flawed or in error and you provided none.   
 
The Board also noted that the NDRB approved your request to upgrade your characterization of service, separation reason and reentry code.  The Board, however, determined that the NDRB determination does not invalidate the findings and recommendation of your administrative separation board.  Accordingly, the Board concluded that there is no probable material error, substantive inaccuracy, or injustice warranting corrective action.  
 
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.   
 
Sincerely,