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.    
 
Although your application was not filed in a timely manner, the Board found it in the interest of justice to waive the statute of limitations and consider your case on its merits.  A three-member panel of the Board, sitting in executive session, considered your application on 18 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.   
 
You were formally counseled on 6 August 2015 for an inappropriate relationship while married; a counseling that was later documented in a fitness report ending on 18 January 2016.  You provided a rebuttal to the counseling arguing that the counseling was unjust since you were legally separated and pending divorce from your wife.  You felt that since your relationship was not inappropriate since there was no evidence of adultery.  After filing your application with this Board, you were promoted to E7 on 1 September 2020. 
 
The Board carefully considered your arguments that the 6 August 2015 counseling statement should be removed from your record.  You raised the same arguments provided in your rebuttal statement but add that it was negatively affecting your promotion and future billet opportunities.  Unfortunately, the Board disagreed with your rationale for relief.   
 
In reviewing your case, the Board determined the preponderance of the evidence supports retaining the counseling statement in your record. The Board concluded that engaging in a personal relationship with another woman while still married could create good order and discipline issues within the command, even if you were legally separated.  While you are correct that there is no law or order prohibiting a relationship between a legally separated man and a single female, the Board found that such a relationship may be reasonably prohibited by a command since it could easily lead to the commission of adultery and creates the appearance that adultery is being committed.  The Board determined that your Commanding Officer (CO) has wide discretion in determining what type of personal relationships negatively affect good order and discipline and appropriately issued the 6 August 2015 counseling based on his command judgement.  Further, the Board noted that you agreed with the CO’s assessment that you exercised poor judgement in the fitness report that documented the counseling.  Finally, the Board considered the fact you were promoted to E7 despite the existence of the counseling in your record.  This indicated to the Board that the existence of the counseling in your record did not create the negative effect on your promotion opportunities, as you believed at the time of applying to this Board.  Based on all these factors, the Board found insufficient evidence of error or injustice to warrant a change to 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,