Docket No. 3689-20

Ref: Signature Date

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.     
 
A three-member panel of the Board, sitting in executive session, considered your application on 29 June 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 18 June 2020 advisory opinion (AO) furnished by the Office of Legal Counsel (PERS-00J), which was previously provided to you, and your rebuttal of 23 August 2020. 
 
The Commander,, issued you non judicial punishment (NJP) on 9 October 2014 for soliciting dates and emailing pictures of yourself with nude females to a junior female Sailor.  The Commander,  issued you a punitive letter of reprimand (PLOR) on 11 October 2014 and an adverse performance evaluation for the period 16 September 2014 to 7 January 2015.  Your command did not recommend you for reenlistment and you were discharged on 28 March 2015. 
 
The Board carefully considered your request to be reinstated to active duty with all pay and benefits effective on the date of your separation, to remove the NJP imposed on 9 October 2014 along will all related documentation, and to remove the adverse performance evaluation.  You contend that (1) Commander, , unjustly denied you the right to refuse NJP, (2) that you did not violate the Navy sexual harassment policy, SECNAVINST 5300.26D, (3) that the accuser initiated comments that were sexual in nature, (4) that your commanding officer (CO) unjustly gave you an adverse performance evaluation, and (5) that you were erroneously and unjustly denied reenlistment.  The Board concurred with the AO that your right to request a court-martial was not violated.  On the date of your NJP you were attached to the ; paragraph 0109 of the JAGMAN states, “A person in the armed forces attached to or embarked in a vessel does not have the right to request a court-martial.”  Furthermore, as noted in the Board’s previous decision for docket number NR20170008595, when attached to or embarked aboard a vessel, the location of the NJP or a temporary duty assignment is not directly related to your right to request a court-martial.  See St. Clair v. Sec’y of Navy, 155 F.3d 848, 852-853 (7th Cir. 1998) and Piersall v. Winter, 507 F. Supp. 2d 23, 42-44 (D.D.C. 2007).  Consequently, the Board determined that you did not have a right to request a court-martial.   
 
As to your contentions that you did not violate the Navy sexual harassment policy and that the complainant of sexual harassment initiated sexual conversations with you, the Board concurred with the AO that the additional evidence you provided did not support that a material error or injustice occurred.  The Board noted that you submitted a rebuttal to the PLOR and NJP, which was reviewed by the staff judge advocate of Commander, , and that said Commander found you were afforded all of your procedural rights and that the NJP was within the discretion of Commander, .   
 
As to the contention that Commander, unjustly gave you an adverse performance evaluation, the Board again concurred with PERS-00J that the special evaluation was in accordance with BUPERSINST 1610.10C.  You further argue that you were denied reenlistment unjustly due to procedural errors by the command in submitting the adverse performance evaluation to PERS-832.  The Board noted that your CO signed the adverse performance evaluation on 23 February 2015 and that the command sent your reenlistment package, to include the command’s statement not recommending you for reenlistment, on 25 February 2015.  Consequently, the Board determined that there was no material error or injustice with regards to the adverse performance evaluation of 7 January 2015 and the denial of reenlistment. 
 
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,
 
7/14/21

Executive Director