From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF Ref: (a) 10 U.S.C. § 1552 (b) DoD 6025.18-R (c) 10 U.S.C. § 5947 (d) BUPERSINST 1610.10D (e) SECNAVINST 1402.1 (f) 10 U.S.C. § 628 (g) DoDI 1320.11 (h) 10 U.S.C. § 629 (i) BUPERSINST 1070.27C (j) DoD Instruction 1320.04 Encl: (1) DD Form 149 w/enclosures (2) ltr 5830 Ser N013/165 of 7 Dec 15 (3) BOI Report Part I-IV of 27 Jun16 (4) CNPC ltr 1920 Ser 834/408 of 2 Aug 16 (5) D ltr 1611 Ser N013/097 of 14 Jul 16 (6) Petitioner’s ltr of 7 Aug 16 (7) ltr 1420 Ser N013/123 of 24 Aug 16 (8) Fitness Report and Counseling Record for the reporting period 1 Nov 15 to 31 Oct 16 (9) Fitness Report Administrative Change ltr 1610 [SSN] of 23 Jan 17 (10) Fitness Report and Counseling Record for the reporting period 1 Nov 16 to 17 May 17 (11) CNPC ltr 1420 Ser 833/0836 of 19 Jul 17 (12) Office of Legal Counsel (BUPERS-00J) of 30 Mar 20 1. Pursuant to reference (a), Petitioner, a commissioned officer of the Navy, with counsel, filed enclosure (1) with the Board (Board), requesting the following corrections be made to his official military personnel file (OMPF): a. Remove the 7 December 2015 Report of Misconduct (ROM) (OMPF Digital Document ID #); b. Remove the [27 June 2016] Board of Inquiry (BOI) Report (OMPF Digital Document ID #); c. Remove the 2 August 2016 status in the Navy (SIN) letter (OMPF Digital Document ID #); d. Remove the 24 August 2016 Fiscal Year 2017 (FY-17) Promotion List removal recommendation and responses (OMPF Digital Document ID #); e. Remove his Regular/Periodic fitness report and counseling record (FITREP) for the reporting period 1 November 2015 to 31 October 2016 (OMPF Digital Document ID #); f. Remove the 23 January 2017 FITREP administrative change letter (OMPF Digital Document ID #); g. Remove his Regular/Detachment of Individual FITREP for the reporting period 1 November 2016 to 17 May 2017 (OMPF Digital Document ID #); h. Remove the 19 July 2017 promotion removal notice letter and attachments (OMPF Digital Document ID #); and i. Promote to the grade of commander, with a 1 September 2017 effective date. 2. Petitioner’s request was initially considered by a panel of the Board on 1 October 2019. However, during post-Board review, and prior to final action on the Board’s recommendation, it was determined that not all contentions raised in his petition were fully addressed by the Board. Additionally, it was recommended that the Board request an advisory opinion (AO) from the Navy Personnel Command (NPC) to address some of his contentions. Therefore, his application was subsequently referred to a new panel for reconsideration. The new panel of the Board, sitting in executive session, considered his application on 4 June 2020. The names and votes of the members of the panel will be furnished upon request. Petitioner’s 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 Petitioner’s application, together with all material submitted in support thereof, relevant portions of his 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, found as follows: a. Before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulation within the Department of the Navy. b. On 24 September 2015, after testing positive for a controlled substance (D-Amphetamine), Petitioner was notified of his suspected misconduct, and notified of his Article 31(b) rights under the Uniform Code of Military Justice (UCMJ). The Commander, U.S. appointed Commander (CDR) as the investigating officer (IO) of a preliminary inquiry (PI) into facts and circumstances surrounding Petitioner’s positive urinalysis results. CDR was authorized access to Petitioner’s protected health information pursuant to reference (b), and Petitioner was informed of and waived his rights with regard to making a statement, and he provided substantial information regarding his medical history, non-prescription drug and supplement use, and lawful prescriptions. The IO reviewed Petitioner’s medical records and consulted with a number of medical providers from whom Petitioner reported receiving treatment. Ultimately, the IO was unable to locate evidence which would support a legal justification for his positive result for D-Amphetamine (DAMP). The IO also noted that it did not appear that there was an issue with the chain of custody of the urine sample. c. A 7 December 2015 ROM, enclosure (2), noted that the positive urinalysis report appears to be the result of Petitioner knowingly ingesting a controlled substance, without legal authority, and therefore wrongful use of a controlled substance. Consequently, the recommended that he be required to show cause for retention on active duty. Petitioner was not referred for Article 15 proceeding or court-martial, and it was not recommend that he be detached for cause. In Petitioner’s 10 January 2016 response to the ROM, he claimed that he had never wrongfully used a controlled substance, that he had never taken a prescription medication that was not prescribed to him, and that he did not know why he tested positive for a controlled substance. Petitioner also stated that, over the last three years, he had been prescribed a wide variety of medications and treatments provided by Navy and Coalition medical facilities and providers, and that a significant amount of those prescribed medications and treatments were not documented in his medical record. d. On 15 April 2016, the Show Cause Authority required Petitioner to show cause for retention before a BOI. On 27 June 2016, the BOI determined that the evidence did not support separation for cause for misconduct or substandard performance. The BOI recommended that Petitioner be retained on active duty. Enclosure (3). On 2 August 2016, the Commander, Navy Personnel Command (PERS-834) notified Petitioner of his retention in naval service. Enclosure (4). It was noted that the complete BOI transcript was not made available to the Board, only excerpts, preventing a complete review of the proceedings. e. On 22 March 2016, the FY-17 Active-Duty Navy Commander Staff (Medical Service Corps) Promotion Selection Board convened. Petitioner was selected with a 1 September 2017 projected date of rank. The 7 December 2015 ROM was available for review by the promotion selection board when he was selected, but the BOI results were not. f. On 5 July 2016, the Commander, Navy Personnel Command (PERS-833) notified Petitioner that, although he was recommended for promotion by the FY-17 Active-Duty Navy Commander Staff Promotion Selection Board, the SECNAV withheld his nomination for promotion pending review of adverse information. Petitioner was notified that the SECNAV would determine whether the adverse information materially affects his qualification for promotion and whether his entire record makes him qualified for promotion. Petitioner was also notified that the SECNAV is authorized to remove an officer’s name from the promotion list if it is determined that the officer is not morally, mentally, physically, or professionally qualified for promotion, and that the SECNAV can also remove an officer’s name from the promotion list if the officer does not meet the exemplary conduct requirements of reference (c). Petitioner was afforded the opportunity to submit a statement to assist the SECNAV in determining his suitability for promotion and to explain, rebut, mitigate, or otherwise address any information, testimony, or references to him in the report of investigation or any supporting documentation. g. On 14 July 2016, the Deputy issued Petitioner enclosure (5), a Letter of Instruction (LOI). The LOI was issued to “discuss specific measures required to improve [his] performance as an officer and medical service professional.” The LOI noted that Petitioner “acknowledged taking various prescription medications that were not properly documented in [his] medical record” and that he acknowledged that, as a patient, “[he] bear[s] the responsibility for reporting what should be in [his] medical record.” The Deputy Commander also noted in the LOI that Petitioner was less than forthcoming about the “trucker pills” he acknowledged taking. Specifically, Petitioner stated to the IO that the pills were an “herbal” type supplement, although they were in a wrapper clearly labeled as Modiodal (or Modafinil), a controlled substance available only by prescription. His Deputy Commander noted that, as a Medical Service Corps (MSC) officer, Petitioner was in a special position of trust and leadership, especially concerning health-related matters, responsible use of controlled substances, medications, and supplements, and maintaining accurate medical records. h. On 7 August 2016, Petitioner submitted enclosure (6), a Corrective Actions Report in response to his LOI. In addition to delineating the corrective action taken, Petitioner stated that, during the course of the PI, he “became aware of no or incomplete documentation of medical treatments and medications” in his official medical record. Petitioner also regretted that his actions and inactions created a situation of distraction, time and resource consumption, and concern from his command. i. On 18 August 2016, Petitioner submitted a statement to PERS-833 in response to his promotion selection withhold notification. Petitioner stated that the BOI results demonstrate that the preliminary determination of misconduct was not supported, and that this experience allowed him to educate Sailors and Marines to the risks and dangers of legal supplements and proper records maintenance requirements. Petitioner explained that he was surprised, shocked, and confuse when the incident happened, and that he regretted that the Navy had to expend time and resources on the matter. He added that he provided all requested information, that there was no disciplinary action taken, no negative impact to his fitness report or mid-term counseling, and that he retained his security clearance. Lastly, Petitioner stated that his career has been exemplary, his peers and superiors seek him out for counsel, that they refer junior officers and enlisted to him for mentoring and development, and that throughout his 15 year Navy career and entire life, he has striven to conduct himself in a manner consistent with the Navy Core Values. j. On 24 August 2016, the forwarded to PERS-833, Petitioner’s 18 August 2016 statement, and recommended removal of Petitioner’s name from the FY-17 Promotion List, noting, in part, that Petitioner “does not meet our exemplary conduct requirements” and “does not embody our Navy Ethos.” The also noted that Petitioner is a medical professional, and is expected to use extreme caution and sound judgement in his selection and use of medications and supplements, that his positive urinalysis demonstrates poor judgment in many regards and sets a bad example for others. Enclosure (7). k. On 30 August 2016, Petitioner rebutted the s promotion removal recommendation, noting that the information used to support the recommendation appears to rely on the incomplete initial interview and PI Report, and does not appear to consider subsequent information or the complete detailed investigations and final findings of no misconduct by the BOI. He also noted that he completed actions to comply with his LOI, and that his medical record is complete. Petitioner stated that the PI Report references an incomplete list (his medication history) that is not his medical record and that did not include several of the medications he had received from Naval Hospital , as verified by CAPT , who reviewed his records. Petitioner stated that, although he was initially in a state of shock and surprise when he was first notified of his positive results on the urinalysis, he provided all information, all prescribed and over-the-counter medications, he was forthcoming, and that he provided clarifying information, as detailed in the BOI Report. Petitioner noted that the PI “functioned as designed,” and that it “led to a full, complete, and expert review of the situation.” He also noted that none of the PI Report recommended disciplinary actions were taken, except the required administrative process. l. Petitioner was issued enclosure (8), a Regular/Periodic FITREP for the reporting period 1 November 2015 to 31 October 2016 with a “progressing” promotion recommendation. His reporting senior (RS) noted that he was counseled during the reporting period “for taking several prescription medications not documented in [his] medical record and being less than forthcoming about medication taken without a prescription.” Additionally, that he “no longer [enjoys the] trust of [his] commander” and that he was “[n]ot recommended for promotion.” Petitioner indicated in Block 46 of the report that he intended to submit a statement, however, there is no statement included with the FITREP in his OMPF. On 23 January 2017, enclosure (9), a FITREP administrative change letter was submitted and entered into Petitioner’s OMPF to correct Block 8, his promotion status, from “regular” to “selected.” m. Petitioner was issued enclosure (10), a Regular/Detachment of Individual FITREP for the reporting period 1 November 2016 to 17 May 2017 with a “promotable” promotion recommendation. Petitioner indicated in Block 46 of the report that he did not intended to submit a statement. n. The Chief of Naval Operation (CNO), in his 12 June 2017 Action Memorandum to the Secretary of the Navy (SECNAV), recommended that Petitioner’s name be removed from the FY-17 Promotion List. The CNO noted that, despite the positive urinalysis results being available to FY-17 Promotion Selection Board, and the BOI’s findings, Petitioner’s decision to take supplements without proper medical consultation, prescription, or documentation represented conduct that fell below what is expected of a naval officer and demonstrated poor judgement, particularly in light of his professional experience as a MSC officer. The CNO also noted that Petitioner’s then-chain of command did not support his promotion, and that he (CNO), also, did not have the necessary trust and confidence to recommend Petitioner’s promotion. On 28 June 2017, the SECNAV removed Petitioner’s name from the FY-17 Promotion List. On 19 July 2017, PERS-833 notified Petitioner that the removal constitutes a failure of selection, and that derogatory material would be included in his OMPF. Enclosure (11). o. Petitioner contends the following: (1) The Officer in Charge (OIC), Naval Branch Health Clinic (), for unknown reasons, submitted a medical record check response on Petitioner, to the Commanding Officer, U.S. Naval Support Activity . The request for the records check came directly from the to the OIC, . This record check contained Protected Health Information (PHI) and Personally Identifiable Information (PII). The wrongful disclosure of PHI and PII to an unauthorized entity violated several Defense instructions including DoD 6025.18-R, specifically referenced in the preliminary inquiry officer’s (PIO’s) authorization letter. The records check response also violated BUMED Instruction 5211.4, and Federal Laws covering Protected Health Information, the non-compliance of these instructions and laws are subject to criminal penalties. (2) The clinical staff at NBHCB “documented” Petitioner’s records “checks” in a strangely informal and highly unusual method by jotting information on the source request and a post-it-note. Beyond the extreme informality, these U.S. Navy clinicians are in violation of the U.S. Navy Manual of the Medical Department (MANMED) NAVMED P-117 as none of the documents are appropriately stamped “SENSITIVE MEDICAL INFORMATION” or contained a Privacy Act of 1974 disclaimer. The medical records check also violates MANMED, the Privacy Act of 1974, and DoD 6025.18-R, section C8.2, by clearly exceeding the “minimum necessary rule” that requires only the minimum necessary protected information be disclosed to meet the intent of the request specified by the COMUSNAVCENT. The speculative post-it-note exceeds the intent and appears to encourage the presumption, by the PIO and the COMUSNAVCENT, that Petitioner was improperly using his valid medications. (3) Captain (CAPT) , by incorrectly stating that Petitioner was taking weight loss medication, creates the presumption that the supplement Phenadrine is a medication that should be documented in his medical record. This presumption creates a false narrative that Lieutenant (LT) compounds and ultimately becomes a foundational element of all adverse official documents and opinions including Petitioner’s FITREPS, ROM, LOI, and the COMUSNAVCENT’s promotion recommendation. This becomes a decisive element of the CNO’s recommendation to the SECNAV to remove Petitioner from the promotion list. (4) CDR , the PIO, admits on 8 October 2015 that she submitted a PIO Report on 30 September 2015 regarding allegations of improper medication use that includes complex and multiple medications, without ever speaking with a pharmacist. (5) The PIO states that the Sacroiliac Joint Injection (SSI) Block injection Petitioner received in May 2015 was “not annotated in [Petitioner’s] medical record and its exact pharmacological make up is unknown.” This is completely incorrect as the procedure is, and was, documented in Petitioner’s medical record. It should be noted that the “medical record” CDR continues to refer to, is not actually Petitioner’s official medical record or a part of his record, but an incomplete and inaccurate Branch Clinic Pharmacy record of medication orders submitted by U.S. Navy providers for Petitioner. This demonstrates that the PIO did not review Petitioner’s complete medical records or pursue relevant lines of inquiry as instructed. Nor, due to the strange manner of documenting the records check, can we ascertain if the clinical staff at noted the SSI Block, or were asked about it. In light of the PIO’s extensive online research of every other medication Petitioner listed, it is also irregular that CDR did not pursue additional information that is readily available online, request the composition from appropriate medical authorities, or follow up with Petitioner. This is a false official statement by CDR . (6) The PIO states “there are no active prescriptions for Tramadol in [Petitioner’s] medical record.” Petitioner provided, and it is noted by the PIO, his medication container with an active prescription label from the Area 21 Navy Branch Health Clinic from March 2015. This medication was valid until March 2016. This medication is also listed in Petitioner’s medical records. (7) The PIO states “there are no active prescriptions for Diazepam in [Petitioner’s] medical record.” Petitioner provided his valid container with an active prescription label. The PIO notes the prescription dates, and it is documented in the records check “post-it-note” from CDR that his Diazepam was valid and active. As shown in the PIO’s interview with CAPT and LT , the PIO specifically inquired about the Diazepam validity and was informed it was valid “for six months.” The prescription from 8 April 2015 was “active” until 8 October 2015. This is a false official statement by CDR . (8) The PIO, without proper supporting documentation, states that: “there is no evidence to suggest the sample bottles [from the 30 July 2015 urinalysis] were tampered with or otherwise contaminated prior to testing.” Beyond citing the Navy Drug Screening Laboratory (NDSL) Mission Statement and Program Description obtained from a website, and engaging in a single e-mail exchange on 24 September 2015 with Dr. from NDSL about prescription medications causing a “pop” for DAMP, the PIO took no documented action to review or validate, the complete UIC 57007 30 July 2015 DD Form 2264. This form, obtained by Petitioner prior to his BOI, indicated the extensive, and well documented, chain of custody process used for Petitioner’s sample while being shipped from to . To validate the PIO’s overarching statement, echoed and amplified repeatedly by the in adverse documents, the PIO would have had to interview personnel at each stage of the transportation process. This was not done. This is a false official statement by the PIO amplified by the . (9) The PIO did not request an NDSL Technical Review of the urinalysis results despite Dr. listing this requirement, and outlining the method to request a review, in order to provide an opinion on positive urine drug test results. The PIO is also referred to NDSL as the proper authority for determining false positives multiple times when she interviewed clinical staff and specifically by the pharmacy experts she engaged. The significance of the PIO’s failure in this instance is highlighted during the BOI. Petitioner and his legal counsel, prior to his BOI, obtained the Technical Review of his sample. This Review, and professional medical and pharmaceutical assessments, indicated that the positive result was most likely caused by the legal Phenadrine supplement. Dr. , as a witness for the Judge Advocate General (JAG), concurred with this assessment in testimony during Petitioner’s BOI. Dr. further stated that he would expect to see a nanograms per milliliter range of 10,000 to 100,000 for a positive DAMP and Petitioner’s 1129 level indicated most likely a false positive or exposure to a microscopic amount of pure amphetamine. (10) The PIO violated the Privacy Act of 1974 as well as SECNAV Instruction 521l.5E and a variety of DoD policies when she informed CAPT during the 12 October 2015 interview that Petitioner was taking “several other medications, most of which he only has an expired prescription for.” In addition to this being a false and misleading statement by CDR , it appears to indicate an attempt to improperly negatively portray Petitioner while disclosing PHI. This perception is compounded when CDR adds a false statement to her comment to CAPT that “he (Petitioner) noted that he was taking Phenadrine, which is a prohibited substance in the military.” CDR attempts to obtain unauthorized medical information on Petitioner by requesting CAPT wrongfully disclose his knowledge “About any personal medical issues he (Petitioner) may have.” Here the PIO grossly exceeds and confuses her legally defined inquiry authority between obtaining CAPT ’ opinion on Petitioner’s performance as his immediate superior, and his knowledge as a clinical provider. Petitioner was never under the medical care of CAPT and did not authorize this request. (11) The PIO did not update or amend her original report from 30 September 2015 with any of the information and clarifications obtained during her extended inquiry Addendum. The failure to correct errors and note relevant information, particularly regarding prescription use violated the task and intent of the inquiry and extension. (12) Between submitting a ROM on 7 December 2015 and taking Command disciplinary action with a LOI provided to Petitioner on 31 July 2016, the waited 237 days. MILIPERSMAN 1611-010 requires that a commander “will include: ... the command action being taken,” and that “an explanation of why disciplinary action was not taken ... should be forwarded with the Report of Misconduct.” (Emphasis added). This violation of MILPERSMAN 1611-010 indicates Petitioner’s LOI is improper and irregular. (13) The PIO, assisted by the JAG, physically compiled, reviewed, and submitted the PIO Report in an irregular manner that represents at best, shoddy attention to detail. This is evidenced by the disorganized documents, consistent errors, and failure to physically include, and ultimately misplace, PIO Report Enclosure 26 - the online research conducted on Phenadrine. In view of the extensive online research the PIO conducted and included on every other listed medication and supplement (besides the SSI Block Injection), and the exculpatory nature of this specific item, this is a particularly convenient material error and irregularity. (14) The PIO and higher authorities who received and reviewed the PIO Report, all failed to identify, correct, or note the numerous errors, missing required legal disclaimers, contradictions, or realize enclosure 26 was missing. This represents careless, irregular action bordering on disdain for basic administrative, legal, and overall oversight of this significant and critical document. (15) The JAG assisted in, reviewed, and submitted the final BOI findings with the simple but extremely crucial material error that indicated the Board “did” find for substandard performance when in fact the Board made the opposite finding. It was only the Petitioner’s attention detail that caught this gross error upon his first opportunity to review the report, unfortunately after JAG submission. (16) The administrative errors in “Ref:” and “Encl:” sections showing incorrect listings and numbering of documents demonstrate and reinforce the careless irregular nature of official administrative activity, particularly in light of the serious nature of this correspondence. This confused the document and caused Petitioner, who assumed the errors meant documents had been redacted, to expend time and resources to confirm this was an indeed an administrative error. (17) The incorrectly identifies and seemingly intentionally exaggerates the informal PI as a much more formal “JAGMAN Investigation” in the ROM submitted to PERS-834 on 7 December 2015. The Report narrative references an “investigation” numerous times. The narrative also includes inconclusive statements regarding an “apparent violation.” CDR was specifically directed, by the , in her appointment letter to conduct a “PI.” Furthermore, all internal references refer to a “preliminary inquiry” or “Inquiry.” The at no time appointed or conducted a command or formal investigation as defined and outlined in the Manual of the Judge Advocate General (JAGMAN). By incorrectly categorizing the “PI” as being an “investigation,” the causes NPC, CNO, and the SECNAV to believe that CDR and the met a significantly higher standard. The PI Report might also potentially be inferred as a separate document or event as the original PI receives different titles as listed references or enclosures on at least three documents. This confusion may explain why the flawed and rejected PI is described by the CNO as “an extensive command investigation.” (18) incorrectly designated Petitioner’s Promotion Status in Block 8, and then in direct violation of BUPERS Instruction 1610.D, failed to correct this error, when notified of its existence, prior to submission to BUPERS of Petitioner’s 2016 Regular FITREP. (19) In violation of BUPERS Instruction 1610.10D, exceeded by 28 days the required mailing date of 15 November 2016 for Petitioner’s 2016 Regular FITREP. (20) In violation of BUPERS Instruction 1610.10D, specifically section 17-8, the forwarded a report with a known material error on 13 December 2016, and did not allow 10 days for Petitioner to prepare and include “for submission with the report” his statement in response to the adverse 2016 Regular Fitness Report after Petitioner indicated he wished to do so. (21) In violation of BUPERS instruction 1610.10D, Petitioner was not provided a copy of the original 2016 Regular Fitness Report prior to the report being forwarded to BUPERS on 13 December 2016, until 02 February 2017, when he was instructed by the Flag Administration personnel to sign the Fitness Report Administrative Change Request for the Block 8 material error. (22) BUPERS-313 properly received and recorded Petitioner’s Standard Form (SF) 180 request for his Service and Medical Records. This entity, charged with maintaining all U.S. Navy Active Duty Service Records, somehow made the determination that Petitioner was either “discharged, deceased, or retired” and failed to provide the requested records. This irregular official action is even more egregious when the SF 180 reviewed by PERS-313 actually includes the information that Petitioner is on Active Duty. (23) Despite completing his administrative checkout of on 17 May 2017, Petitioner was somehow selected on 26 June 2017 for random urinalysis - 40 days after detaching that command. p. An advisory opinion (AO) furnished by the Office of Legal Counsel (BUPERS 00J), enclosure (12), recommended approving Petitioner’s request to remove the 7 December 2015 ROM, the 2 August 2016 SIN letter, and the 3 August 2016 BOI Report from his OMPF. In this regard, the AO noted that, in accordance with current PERS-834 finish filing standard operating procedure (SOP), neither a ROM, SIN letter nor a BOI report would be filed in a member’s OMPF when show cause is initiated based on a ROM and a BOI finds no misconduct. The AO recommended denying Petitioner’s request to remove the 19 July 2017 CNPC letter of notifying him of his removal from the O-5 promotion list. In this regard, the AO determined that the original action of removing Petitioner from the promotion selection list did not constitute an error or injustice. The AO noted that the underlying PI constitutes an agency record, and as such, is not subject to removal from the Navy’s record system. The PI itself constitutes adverse or reportable information in the Navy’s records and forms a valid basis for a withhold or delay action and may be considered in making the decision to promote or remove Petitioner from the FY-17 Promotion List. The AO recommended denying Petitioner’s request to remove his FITREP for the reporting period 1 November 2015 to 31 October 2016, his 23 January 2017 administrative change request memo, and his FITREP for the reporting period 1 November 2016 to 17 May 2017. In this regard, the AO determined that Petitioner fails to prove that the FITREP ending 31 October 2016 constitutes an error or injustice. The AO noted that, pursuant to reference (d), a FITREP “should take into account misconduct that has been established through reliable evidence to the reporting senior’s satisfaction.” The AO noted that the comments in Petitioner’s FITREP are based on a PI, which determined that the positive urinalysis was the result of knowing and wrongful ingestion of a controlled substance. The AO determined that there is reliable evidence to support the comments in the FITREP, and that the BOI members’ findings that the evidence did not support the misconduct (drug abuse) basis does not affect the findings of the PI or the FITREP. Additionally, the BOI findings are not binding on other administrative processes as the PI and the BOI are separate fact finding entities. The AO also determined that Petitioner fails to prove that the FITREP ending 17 May 2017 constitutes an error or injustice or that it is not in violation of reference (d). The AO recommended denying Petitioner’s request to be promoted to the rank of commander. In this regard, the AO determined that promotion to the rank of O-5 automatically is not legally supportable. Alternatively, although not requested, PERS-00J recommend approving an FY-17 Active Duty Navy Commander Staff (Medical Service Corp) Special Selection Board (SSB), providing the Board removes adverse material from Petitioner’s OMPF. The AO noted that, in accordance with reference (e) an SSB is warranted when an officer can demonstrate, by a preponderance of the evidence, that grounds exist for convening an SSB, including, material unfairness. Material unfairness includes situations where “the PSB [promotion selection board] lacked material information. Material information is information that, when properly recorded in, or removed from, an officer’s record would have been essential to a substantially accurate, complete and fair portrayal of the officer’s career.” q. On 5 May 2020, Petitioner, with counsel filed a written rebuttal to the PERS-00J AO. Petitioner agreed with the AO’s recommendation to remove the ROM, SIN letter, and BOI report from his military records. However, Petitioner reasserts that his FITREPs should be removed from his military records for the exhaustive arguments he established in his petition to the Board. Specifically, the inclusion of the contested FITREPs constitutes both a material error and a material injustice in light of the findings of the BOI and the unreliable preliminary investigation that they were based upon. Petitioner reasserts that he should be retroactively promoted to the rank of commander rather than being subject to an SSB. Petitioner claims that both FITREPs and his removal from the FY-17 Promotion List were the proverbial fruit of the poisonous tree because they were based upon inaccurate information. Additionally, these negative administrative actions have had a compound in effect on his long and proud military career and will continue to cause him undue and inequitable prejudice until his military records are corrected in whole. Petitioner states that he has previously submitted an all-encompassing legal brief to the Board that clearly establishes the legal and factual basis for his request, and based on the facts and arguments in his rebuttal and previously submitted, Petitioner reasserts his request to remove all of the negative information in his military records pertaining to the above referenced matter and to be retroactively promoted to the rank of commander. r. Pursuant to references (e), (f), and (g), granting a SSB is an action to consider for promotion, in or above the promotion zone, those eligible Navy and Marine Corps commissioned officers, including former officers no longer on the ADL [Active Duty List] or RASL [Reserve Active Status List], who were not considered by a promotion selection board due to administrative error or who were unfairly considered and not selected for promotion. (Emphasis added). Petitioner was considered by the FY-17 Active Duty Navy Commander Staff (Medical Service Corp) Promotion Selection Board, and he was selected for promotion. Pursuant to reference (h), “an officer whose name is removed from a list... continues to be eligible for consideration for promotion. If he is recommended for promotion by the next selection board convened for his grade and competitive category and he is promoted, the Secretary of the military department concerned may, upon such promotion, grant him the same date of rank, the same effective date for the pay and allowances of the grade to which promoted, and the same position on the active-duty list as he would have had if his name had not been so removed.” s. Pursuant to reference (i), ROMs, BOI Reports, and other relevant memoranda prepared at the Navy Personnel Command, sent to and received by the member concerned (to include SIN and DFC letters) are to be filed in a member’s OMPF. Documents filed in a member’s OMPF are of a permanent nature and are not intended to be removed. Petitioner’s ROM, BOI Report, SIN letter, and FY-17 Promotion List removal recommendation and responses were all filed in accordance with reference (i). CONCLUSION Upon review and consideration of all the evidence of record, the Board determined that Petitioner’s request does not warrant relief. In reaching its conclusion, the Board addressed each of Petitioner’s contentions and concluded that he did not furnish sufficient evidence demonstrating probable material error or injustice warranting corrective action. The Board considered his contention that the wrongful disclosure of PHI and PII violated Instructions and Federal Laws covering PHI, and that the non-compliance of these instructions and laws are subject to criminal penalties. The Board also considered his contention that the clinical staff at documented his records check in an extremely informal and highly unusual method in violation of the MANMED, the Privacy Act of 1974, and DoD 6025.18-R, and that the speculative post-it-note exceeds the intent and appears to encourage the presumption, by the PIO and , that Petitioner was improperly using his valid medications. The Board noted that these contentions do not allege an error or injustice in Petitioner’s record to be corrected or removed, and determined that, even assuming arguendo—but not conceding—that these errors did occur, they are harmless and not material, as it is his own record, and he has not shown that the documented facts are incorrect. Moreover, the Board lacks the authority to provide redress for violations of the Privacy Act, laws, and regulations, that are not also (or that did not cause) errors or injustices in a record. The Board considered Petitioner’s contention that CAPT creates the presumption that the supplement Phenadrine is a medication that should be documented in his medical record, and that this presumption created a false narrative that LT compounded, and that it ultimately becomes a foundational element of all adverse official documents and opinions including Petitioner’s FITREPs, ROM, LOI, and ’s promotion recommendation. Petitioner asserts that this becomes a decisive element of the CNO’s recommendation to the SECNAV to remove Petitioner from the FY-17 Promotion List. The Board determined that this contention is without merit. In this regard, the Board noted Petitioner’s use of Phenadrine was documented in the PI Report, where it was noted that “[Petitioner] also said that he took Phenadrine the week of his urinalysis,” and that the PI noted that Phenadrine was identified as “an over-the-counter weight loss dietary supplement.” The Board also noted that Petitioner, having been the subject of substantiated adverse findings from an officially documented Inquiry, was afforded an opportunity to submit a rebuttal prior to the decisions made (and thus the actions reflected in his record). The Board noted that Petitioner had lost the trust and confidence of his chain-of-command due to poor judgement, setting a bad example, lack of attention to detail, the careless nature of his medication usage, and for not meeting the exemplary conduct requirement. The Board determined that it was the aggregation of these factors that were the foundational elements of adverse official documents and opinions, not a purported false narrative that Petitioner was taking weight loss medication that was not documented in his medical record. The Board considered Petitioner’s contention that CDR , the PIO, admits that she submitted a PI Report regarding allegations of improper medication use that includes complex and multiple medications, without ever speaking with a pharmacist. The Board determined that this contention is immaterial. The Board noted that the PI Report documented a list of 13 prescription compounds that could cause a positive result for DAMP (none of which were documented in Petitioner’s medical record), noting specifically that “the list is not comprehensive and does not take effects of mixing medications into consideration.” Additionally, three physicians independently reviewed Petitioner’s electronic and hard-copy medical records, and “none of the physicians found anything to explain a positive result for DAMP.” CDR also submitted an addendum to her PI Report that included additional interviews with medical professionals, to include a medical doctor and a pharmacist. Ultimately, the additional inquiry did not result in a change to her original PI Report. Moreover, the Board determined that Petitioner, having been the subject of substantiated adverse findings from an officially documented Inquiry, was afforded an opportunity to submit a rebuttal prior to the decisions made (and thus the actions reflected in his record). The Board considered Petitioner’s contention that the PIO incorrectly states that Petitioner’s SSI Block injection was not annotated in his medical record, and that its exact pharmacological make up is unknown, demonstrates that the PIO did not review his complete medical records or pursue relevant lines of inquiry as instructed. The Board also considered Petitioner’s assertion that, due to the strange manner of documenting the records check, one cannot ascertain if the clinical staff at noted the SSI Block, or were asked about it. Petitioner further asserts that, in light of the PIO’s extensive online research of every other medication Petitioner listed, it is also irregular that CDR did not pursue additional information that is readily available online, request the composition from appropriate medical authorities, or follow up with the Petitioner. Petitioner contends that this amounts to a false official statement by CDR . The Board, however, noted that during one of the interviews with Petitioner, the PIO requested copies of his SSI treatment (presumably because it was not found in his medical record), and that Petitioner stated that his personal copies of the treatment were in , and that he acknowledged that he bears the responsibility of reporting what should be entered in his record. The Board noted that this requirement is also directed by OPNAV Instruction 5350.4D - Navy Alcohol and Drug Abuse Prevention and Control - “Members shall report all prescription medications received from non-military Medical Treatment Facilities (MTFs) to their chain of command and ensure they are entered into their military health record.” The Board determined that Petitioner has not shown that the statements made by CDR were false, or that, if they were, they caused the alleged errors or injustice in his OMPF. The Board also determined that Petitioner appears just to disagree with the findings of the PI, which does not make them an error. Ultimately, Petitioner has not demonstrated that his SSI treatment, whether documented in his medical record or not, caused the positive urinalysis result for DAMP. The Board considered Petitioner’s contentions that CDR made false official statements in her PI Report regarding Petitioner’s Tramadol and Diazepam prescriptions. The Board noted that Petitioner’s medication history lists three prescriptions for Tramadol, and four prescriptions for Diazepam, and that all are listed as “status: expired.” Additionally, when interviewed by the PIO and asked if his Tramadol prescription was “on record,” Petitioner responded “No. There are a lot of things not in my medical record . . .” Additionally, CAPT stated that “none of LCDR ’s medications has DAMP or DAMP metabolites – including the expired medications…” and that she “sought pharmacy expertise for select medications to ensure accuracy.” Regardless, the Board determined that these contentions do not allege an error or injustice in his OMPF, and again, Petitioner appears just to disagree with the findings of the PI, which does not make them an error. Clearly, there were discrepancies between what was in his medication history (medical record) and the actual in-hand medications with active prescription labels. The Board concluded that it was verified by medical professionals that even considering all medications, none of them would have tested positive for DAMP. The Board considered Petitioner’s contention that CDR made a false official statement, amplified by , that “there is no evidence to suggest the sample bottles (from the 30 July 2015 urinalysis) were tampered with or otherwise contaminated prior to testing.” The Board noted that this contention does not allege an error or injustice in Petitioner’s OMPF, and again, he appears just to disagree with the findings of the PI, which does not make it an error. Additionally, the Board noted that there is no evidence in the record, and Petitioner submitted none, that the chain of custody was broken. The Board considered Petitioner’s contention that the PIO did not request an NDSL Technical Review of the urinalysis results despite this requirement, and that the significance of the PIO’s failure in this instance is highlighted during the BOI. Petitioner asserts, without evidence, that he and his legal counsel, prior to his BOI, obtained the Technical Review of his sample, and that this review, and professional medical and pharmaceutical assessments, indicated that the positive result was most likely caused by the legal Phenadrine supplement, and that Dr. , as a witness for JAG, concurred with this assessment in testimony during Petitioner’s BOI. The Board noted that an NDSL Technical Review of the urinalysis results was not required of the PIO. Although a transcript of the entire BOI proceeding was not available for review, the Board was able to determine that Dr. merely advised CDR that the NDSL is “not permitted to provide a written opinion as to whether certain prescribed medications can cause a positive urine drug test result unless a Technical Review is requested.” The POI did not request a technical review from NDSL, but she did obtain verification from three physicians who independently verified that none of Petitioner’s prescriptions would have tested positive for DAMP. Moreover, Petitioner’s contention does not allege an error or injustice in his OMPF. The Board considered Petitioner’s contention that the PIO violated the Privacy Act of 1974 as well as SECNAV Instruction 5211.5E and a variety of DoD policies when she informed CAPT that Petitioner was taking “several other medications, most of which he only has an expired prescription for.” Petitioner asserts that, in addition to this being a false and misleading statement by CDR , it appears to indicate an attempt to improperly negatively portray Petitioner while disclosing PHI. The Board noted, again, that this does not allege an error or injustice in Petitioner’s record to be corrected or removed. Even assuming arguendo, without conceding, that this is an error, it is harmless, as it is his own record, and he doesn’t claim that the documented facts are incorrect. Moreover, the Board lacks the authority to provide redress for violations of the Privacy Act or SECNAV Instruction or DoD policies (or HIPAA) that are not also errors or injustices in a record. The Board considered Petitioner’s contention that the PIO’s failure to correct errors and note relevant information in her addendum to her original PI Report, particularly regarding prescription use, violated the task and intent of the Inquiry and extension. The Board noted, again, that this contention does not allege an error or injustice in Petitioner’s record to be corrected or removed. Additionally, the PIO included, as enclosures to her addendum, all additional information gathered, and noted in her addendum that relevant information remained the same – that Petitioner had prescriptions that were not in his medical record, and none of them would have tested positive for DAMP. The Board considered Petitioner’s contention that his LOI is improper and irregular. Specifically, the waited 237 days before issuing Petitioner his LOI in violation of MILIPERSMAN 1611-010, which requires that a commander “will include: ... the command action being taken,” and that “[a]n explanation of why disciplinary action was not taken ... should be forwarded with the Report of Misconduct.” The Board noted that this does not apply to a ROM, but only to a final civil action report. The Board thus concluded that this contention is without merit. The Board considered Petitioner’s contention that the PIO, assisted by JAG, physically compiled, reviewed, and submitted the PI Report in an irregular manner that represents at best, shoddy attention to detail, and that this is evidenced by the disorganized documents, consistent errors, and failure to physically include, and ultimately misplace exculpatory evidence - PI Report Enclosure 26 - the online research conducted on Phenadrine. The Board also considered Petitioner’s contention that the PIO and higher authorities who received and reviewed the PIO Report, all failed to identify, correct, or note the numerous errors, missing required legal disclaimers, contradictions, or realize enclosure 26 was missing. The Board determined that there are no required legal disclaimers, that Petitioner does not identify contradictions and errors, or sufficiently explain why they are material, and there is no evidence in the record, and Petitioner submitted none, that enclosure 26 of the PI Report was exculpatory, or that it was not reviewed when decisions were made. Additionally, even if this was an error, Petitioner was not denied his procedural right to submit a rebuttal prior to the decisions made (and thus the actions reflected in his record). The Board considered Petitioner’s contention that the JAG assisted in, reviewed, and submitted the final BOI findings with the simple but extremely crucial material error that indicated the Board “did” find for substandard performance when in fact the Board made the opposite finding. The Board determined that this contention is immaterial as the CNO to SECNAV action memorandum correctly states the BOI’s findings and recommendation. The Board considered Petitioner’s contention that the incorrectly identifies and seemingly intentionally exaggerates the informal PI as a much more formal “JAGMAN Investigation” in the ROM submitted to PERS-834, and that by incorrectly categorizing the “PI” as being an “Investigation,” the causes the Navy Personnel Command, the CNO, and the SECNAV to believe that CDR and the met a significantly higher standard. The Board determined that this is not a material error, as those who took action, the SECNAV, the chain of command, all had the actual Inquiry to review, and Petitioner was not denied his procedural right to comment. The Board also considered Petitioner’s contention that the PI Report might also potentially be inferred as a separate document or event as the original PI receives different titles as listed references or enclosures on at least three documents, and that this confusion may explain why the purportedly flawed and rejected PI is described by the CNO as “an extensive command investigation.” The Board determined that this contention is merely speculation and immaterial because it does not allege an error or injustice in Petitioner’s record to be corrected or removed. The Board considered Petitioner’s contentions that, in violation of reference (d), the FITREP ending 31 October 2016 was submitted late, and that he did not receive a copy of the report until February 2017. The Board also considered Petitioner’s contention that his RS incorrectly designated his promotion status in Block 8, and failed to correct this error when notified of its existence, prior to submission to BUPERS. Additionally, the Board considered Petitioner’s contention that his RS submitted this FITREP without allowing him to prepare and include for submission with the report his statement in response to the adversity of the report. The Board, however, substantially concurred with the AO and determined that these contentions do not constitute material error. The Board noted that Block 8 of the FITREP was corrected by the submission of enclosure (9) a FITREP administrative change letter, and also determined that the untimely submission of the report does not invalidate it. The Board concurred with the AO that the comments in Petitioner’s FITREP are based on a PI, which determined that the positive urinalysis was the result of knowing and wrongful ingestion of a controlled substance. The Board also concurred with the AO that there is reliable evidence to support the comments in the FITREP, and that the BOI members’ findings that the evidence did not support the misconduct (drug abuse) basis does not affect the findings of the PI or the FITREP. The Board also concurred with the AO that the BOI findings are not binding on other administrative processes as the PI and the BOI are separate fact finding entities. The Board also noted that it was within his RS’s discretionary authority to determine that Petitioner committed misconduct, and that it was properly documented in his FITREP pursuant to reference (d). The Board noted that, although Petitioner chose to submit a statement with this FITREP, it could not determine if he actually did submit a statement, and if so, why his statement has not been inserted into his OMPF. The Board, however, determined that, pursuant to reference (d), “Members have the right to submit a statement to the record concerning their reports, either at the time of the report or within [two] years thereafter.” The Board determined that Petitioner did not furnish any evidence that he was denied an opportunity to submit his statement for inclusion in his OMPF. With regard to Petitioner’s request to remove his FITREP ending 17 May 2017, the Board substantially concurred with the AO that Petitioner fails to prove that the FITREP constitutes an error or injustice, or that it is in violation of reference (d). The Board considered Petitioner’s contention that PERS-313 properly received and recorded Petitioner’s SF 180 request for his Service and Medical Records, but made the determination that he was either “discharged, deceased, or retired” and failed to provide the requested records, and that this irregular official action is even more egregious when the SF 180 reviewed by PERS-313 actually includes the information that Petitioner is on Active Duty. The Board determined that this contention is immaterial, as it does not allege an error or injustice in Petitioner’s record to be corrected or removed. The Board considered Petitioner’s contention that despite completing his administrative checkout of COMUSNAVCENT, Petitioner was somehow selected for random urinalysis - 40 days after detaching that command. The Board determined that this contention is immaterial, as it does not allege an error or injustice in Petitioner’s record to be corrected or removed. With regard to Petitioner’s request to be promoted to commander with a 1 September 2017 effective date, and corresponding lineal number, the Board noted that the decision to remove Petitioner from the FY-17 Promotion List was made deliberately. The SECNAV is responsible for ensuring that officers to be appointed are mentally, physically , morally, and professionally qualified for promotion.. Reference (c) and (j). The SECNAV determined that he did not have the necessary trust and confidence to promote Petitioner, and the Board lacks jurisdiction to disturb that determination. The Board also determined that, based on the conclusion that there is no material error or injustice regarding Petitioner’s OMPF, and although not requested by Petitioner, there is also no basis for the convening of a SSB. In view of the foregoing, the Board determined that the adverse material resident in Petitioner’s OMPF, including his ROM, BOI Report, SIN, selection removal documentation, and FITREPs, does not constitute probable material error or injustice warranting corrective action. Accordingly, the Board unanimously concluded that Petitioner’s requested relief is unwarranted. RECOMMENDATION In view of the above, the Board recommends denying relief. 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. The foregoing action of the Board is submitted for your review and action. Reviewed and Approved 7/23/2020