Dear  
 
This letter is in reference to your application for correction of your naval record pursuant to Title 10, United States Code, Section 1552.  After careful and conscientious consideration of the entire record, the Board for Correction of Naval Records (Board) found the evidence submitted was insufficient to establish the existence of probable material error or injustice.  Consequently, your application has been denied. 
 
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. 
 
A three-member panel of the Board, sitting in executive session, considered your application on 20 April 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.  The Board also considered the 25 September 2020 advisory opinion (AO) furnished by the Office of Legal Counsel (PERS-00J), which was previously provided to you, and your rebuttal of 18 February 2021. 
 
You were commissioned an Ensign in the U.S. Navy as a temporary Limited Duty Officer (LDO) on 1 March 2016.  You were the subject of a Naval Criminal Investigative Service (NCIS) investigation regarding an incident on 9 December 2016 when you went out drinking with members of the wardroom.  As a result of the NCIS report of investigation, your Commanding Officer (CO) issued you an adverse fitness report on 31 May 2017 and routed a Report of Misconduct which requested a Detachment for Cause (DFC).  On 14 July 2017 Deputy Chief of Naval Personnel approved the DFC and on 2 November 2017 the Assistant Secretary of the Navy Manpower and Reserve Affairs (ASN M&RA) approved your reversion to enlisted status.  On 17 April 2018 you underwent an Administrative Separation Board (ADSEP Board) on the basis of Commission of a Serious Offense for violation of Article 120.  The ADSEP 
Board found that the preponderance of the evidence did not support the basis for the offense. 
 
The Board carefully considered your request to overturn your reversion from O-1 to E-7, to reinstate your commission as an Ensign in the U.S. Navy for Fiscal Year (FY) 2016 Limited Duty Officer (LDO) group, and to remove fitness report 1 June 2016 to 31 May 2017.  You contend that your reversion to enlisted status is invalid as you were deprived of your constitutional right to confront your accuser and you were denied the right to have a board of inquiry (BOI) prior to reversion.  You further allege that your reversion to enlisted status and adverse fitness report are erroneous and unjust because the finding of the ADSEP Board that the preponderance of evidence did not support the basis, Commission of a Serious Offense for Article 120 of the Uniform Code of Military Justice (UCMJ), is evidence that you committed no misconduct.  In addition, you argue that witnesses questioned at the ADSEP Board contradicted the statements they made to NCIS and as a result, the NCIS report of investigation, the justification for the reversion, is invalid. 
 
The Board concurred with the AO that you did not have a right to confront your accuser before your adverse fitness report or reversion and you did not have a right to a BOI prior to reversion.  The Board noted that you did not submit a rebuttal to the adverse fitness report and that the basis of the adverse report was the commanding officer’s (CO’s) belief that you failed to abide by the CO’s counseling that you signed on 3 May 2016; specifically “as a part of your responsibilities is the charge that you will be held accountable to the highest standards of personal and professional conduct, on and off duty.”  The Board further noted that the basis for your reversion to enlisted status was not the Article 120 allegation but the verbal altercation between you and a fellow Ensign.  The Board again concurred with PERS-00J that the ADSEP Board finding of no basis for Article 120 does not invalidate the reversion to enlisted status or fitness report and that there was insufficient evidence to show that the witness statements in the NCIS investigation were unreliable and render the investigation invalid.  Consequently, the Board determined that there was no material error or injustice with regard to the adverse fitness report of 31 May 2017 and the reversion to enlisted status and that both actions will remain in your record. 
 
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, 
5/4/2021
Executive Director