From:  Chairman, Board for Correction of Naval Records 
To:       Secretary of the Navy 
 
Subj: REVIEW OF NAVAL RECORD OF   
  
Ref:  (a) Title 10 U.S.C. § 1552 
 (b) BUPERSINST 1610.10D (EVALMAN) 
 (c) JAGINST 5800.7F (JAGMAN) 
    
Encl:   (1) DD Form 149 w/attachments 
        (2) Fitness Report and Counseling Record 1 May 18 to 30 Apr 19 
        (3) NPC memo 1610 PERS-32 of 31 Jan 20 
        (4) Office of Legal Counsel memo PERS-00J of 19 Mar 20 
  
1.  Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting that his record be corrected by removing a Letter of Admonition, the fitness report covering the period 1 May 2018 to 30 April 2019, and all derogatory information related to a command investigation from his official military personnel file (OMPF).     
 
2.  The Board, consisting of , reviewed Petitioner’s allegations of error and injustice on 2 March 2021 and, pursuant to its regulations, determined that the corrective action indicated below should be taken on the available evidence of record.  Documentary material considered by the Board consisted of the enclosures, relevant portions of Petitioner’s naval record, and applicable statutes, regulations and policies. 
 
3.  The Board, having reviewed all the facts of record pertaining to Petitioner's allegations of error and injustice, finds as follows: 
 
   a.  Before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulations within the Department of the Navy.   
 
   b.  On 31 January 2019 a command investigation determined Petitioner gave inconsistent, false, or misleading information concerning the severity of his medical conditions leading to the cancellation of his scheduled September 2018 Individual Augmentation (IA) deployment to .  Based on the findings of the investigation, Petitioner’s commanding officer (CO) issued Petitioner a Letter of Admonition (LOA), and an adverse fitness report covering the period 1 May 2018 to 30 April 2019.     
 
   c.  Petitioner contends that the investigation is invalid because of undue command influence and bias of the investigating officer.  Petitioner argues that the LOA, the investigative findings and all negative entries in his record related to the investigation should be removed from his record because they are based on unsubstantiated and unsupported legal conclusions of the unjust investigation.   
 
   d.  Enclosure (3), an advisory opinion (AO) furnished by Navy Personnel Command (PERS-32), recommended denying Petitioner’s request due to the fact that reference (b) authorizes the reporting senior (RS) to comment on misconduct.  Since the command investigation substantiated Petitioner’s misconduct, the RS was correct to document the fitness report as adverse. 
 
    e.  Enclosure (4), an AO furnished by Office of Legal Counsel (PERS-00J), recommended to partially grant Petitioner’s request.  The AO noted that the Letter of Admonition is not in Petitioner’s official record; it is considered non-punitive as it was not the result of non-judicial punishment (NJP) under UCMJ Article 15.  The AO further noted that the investigation and matters related to the investigation are not in the Petitioner’s record; per Navy Personnel Command (PERS 834) policy, investigations in which there was a finding by the show cause authority that no show cause was necessary, no detachment for cause was warranted and there was no NJP, are not included in a member’s record.  Finally the AO noted the fitness report violated references (b) and (c), which state that a fitness report may not mention non-punitive censure.    
 
CONCLUSION 
 
Upon review and consideration of all the evidence of record, and especially in light of the Office of Legal Counsel’s advisory opinion, the Board determined that Petitioner’s request warrants partial relief.  The Board concurred with the AO that the fitness report is invalid as it directly mentions the LOA and redacting the erroneous language in the report would not be possible.  The Board thus concluded that the fitness report of 1 May 2018 to 30 April 2019 shall be removed. 
 
The Board, however, determined that Petitioner’s requests to remove the Letter of Admonition and command investigation findings are moot as these documents are not in Petitioner’s record.  
 
RECOMMENDATION 
 
In view of the above, the Board recommends the following corrective action: 
 
Remove fitness report 1 May 2018 to 30 April 2019 from Petitioner’s record. 
 
No further relief is to be granted. 
 
4.  It is certified that a quorum was present at the Board’s review and deliberations, and that the foregoing is a true and complete record of the Board’s proceedings in the above-entitled matter. 
 
5.  Pursuant to the delegation of authority set out in Section 6(e) of the revised Procedures of the Board for Correction of Naval Records (32 Code of Federal Regulations, Section 723.6(e)), and having assured compliance with its provisions, it is hereby announced that the foregoing corrective action, taken under the authority of the reference, has been approved by the Board on behalf of the Secretary of the Navy.