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 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. 
 
The Board determined that your personal appearance, with or without counsel, would 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.  
 
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 application on its merits.  A three-member panel of the Board, sitting in executive session, considered your application on 23 February 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 4 February 2020 advisory opinion (AO) furnished by the Navy Personnel Command (PERS-32) and the 5 March 2020 Office of Legal Counsel (BUPERS-00J) AO which were previously provided to you.  Although you were afforded an opportunity to submit a rebuttal, you did not do so. 
 
The Board carefully considered your request to (1) remove a Special evaluation report and counseling record for the period of 16 November 2012 to 16 August 2013, (2) reinstate your advancement to Chief Petty Officer (E-7), (3) change block 45 to promotable and block 47 on this evaluation to recommended, (4) change block 45 on the evaluation report and counseling record dated 16 November 2014 to 15 November 2015 to “significant problems” and (5) add a Page 13, annotating your non-judicial punishment (NJP) to your record.   

You were arrested by civilian authorities for driving under the influence of alcohol (DUI) on 20 July 2013.  On 1 August 2013 you were notified that you were selected for advancement to E-7.  You received the contested evaluation on 16 August 2013, recording the Commanding Officer’s withdrawal of your recommendation for advancement to E-7.  You were convicted of DUI in civilian criminal court on 22 January 2015 and subsequently received nonjudicial punishment (NJP) for said DUI on 5 February 2015.  You contend that receiving the adverse evaluation report after notification of advancement to Chief Petty Officer violates BUPERSINST 1610.10D, that you unjustly received NJP for the incident 15 months after receiving the special evaluation, and that your punishment was not properly annotated in your record affecting your ability to advance to E-7.  

The Board concurred with PERS-32 and BUPERS-00J in that per BUPERSINST 1610.10D the commanding officer (CO) was authorized to write an evaluation withdrawing your advancement recommendation and PERS-803 had the authority to withhold the advancement due to the civilian arrest.  The Board noted the CO stated in block 43 of the August 2013 evaluation that he was not giving you a recommendation of retention and advancement, and that you signed the evaluation and did not submit a statement.  In addition, the Board determined the NJP was proper as the offense was within the two year statute of limitations, and the modifications to the 15 November 2015 are not warranted as there is no requirement for a command to put adverse material in an evaluation.  Consequently, the Board concluded that the 16 August 2013 evaluation report is valid and shall remain in your record and no changes will be made to the 16 November 2014 to 15 November 2015 evaluation. 

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,