DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No. 5502-20 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 applications on 15 July 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 applications, together with all material submitted in support thereof, relevant portions of your naval record and applicable statutes, regulations and policies, as well as the 10 February 2021 Advisory Opinion (AO) provided by the Navy Personnel Command (PERS-32) and your rebuttal. 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. The Board carefully considered your request to amend your 1 November 2016 to 9 June 2017 Fitness Report & Counseling Record and to remove your Fiscal Year (FY) 2020 failure of selection. The Board considered your contentions that your Reporting Senior (RS) acted arbitrarily, capriciously, and in violation of applicable regulations and the U.S. Constitution by withholding a Block 41 bottom line promotion recommendation from your immediate supervisor, and that she abused her authority and/or committed reprisal for making protected communications regarding an equal opportunity complaint and a communication about a potential abuse of authority. You also contend that the Navy Inspector General (IG) acted arbitrarily, capriciously, in bad faith, and in violation of applicable regulations in declining to investigate your claims of reprisal. You assert that the Navy IG wrongly applied the standard concerning the withholding of a favorable personnel action, wrongly applied the causation criteria for reprisal, failed to address or improperly weighed evidence of reprisal, and, as required by DoDD 7050.06, failed to conduct an investigation into the underlying matter of the protected communication. In order to support your claim of reprisal for making protected communications, you requested that the Board (1) direct the Navy IG to produce a non-redacted version of investigation; (2) direct the Navy IG to obtain and produce redacted versions of the O4/O5 (select) fitness reports issued by for the purpose of reviewing the bottom line recommendations in Block 41; (3) authorize oral argument; and (4) authorize depositions of your list of witnesses. The Board, however, is not an investigative body. Neither Section 1034 of Title 10, United States Code nor Department of Defense Directive (DoDD) 7050.06 (17 April 2015) require the Board to investigate or to gather any evidence maintained by the Inspector General. The function of the Board is to consider applications properly before it for the purpose of determining the existence of error or injustice in the naval records of current and former members of the Navy and Marine Corps, and to make recommendations to the Secretary or to take corrective action on the Secretary’s behalf when authorized. The DoDD 7050.06 directs the Board to consider applications for the correction of military records at the request of a Service member who alleges restriction or reprisal, and order such action, consistent with the limitations in Section 1552 and 1553 of Title 10, United States Code, to correct the record of a personnel action prohibited by Section 1034 of Title 10, United States Code. The Board noted that your Whistleblower Reprisal complaint was filed on 16 March 2018, alleging that your contested Fitness Report & Counseling Record is a withheld favorable personnel action (WFPA). The 12 June 2018 Navy IG Military Reprisal Complaint Intake Worksheet indicates, in part, that the investigator detailed several methods taken to ensure fair and unbiased evaluation of the alleged WFPA. The final determination was that the contested fitness report was a positive influence on your record, and was ranked as one of the best reports issued by your RS, to a lieutenant commander. The investigator found no motive for reprisal, the personnel action taken was not unfavorable and was not withheld favorable, and there was no disparate treatment. Contrarily, the inspector noted that the contested fitness report is one of the best issued by your RS, with significant positive attributes, clear recommendations towards career progression, and the highest score awarded out of 12 reports. The Board noted that the investigator’s analysis is supported by both expert review and reasonable person standards. Therefore, the Navy IG declined to investigate and recommended that the case be closed without further investigation. The Board also noted that the Department of Defense Inspector General (DoD IG) approved the Navy IG’s conclusions and recommendation to dismiss your complaint. You requested reconsideration of the DoD IG’s decision to close your case, and provided additional evidence demonstrating your perception that your protected communication could have created motive for reprisal, and disagreement with the determination the personnel action was not unfavorable. The DoD IG reviewed your additional evidence, as well as its prior decision to close your complaint, and found no basis to reverse its prior decision. The DoD IG specifically noted that you provided no evidence to dispute the determination the evaluation you received, which exceeded your RS’s average evaluation score as of October 2017, was a favorable personnel action. The Board noted that RSs may consider and use input from a variety of sources when developing fitness reports. Although your supervisor recommended your RS include a promotion recommendation in Block 41, in addition to the promotion recommendation already included in Blocks 42 and 43, final approval of a fitness report’s contents is at the discretion and authority of the RS. Thus, the Board substantially concurred with the AO that your RS properly prepared the contested Fitness Report & Counseling Record in accordance with BUPERS Instruction 1610.10D. In view of the foregoing, the Board determined that you failed to demonstrate that your RS acted arbitrarily, capriciously, and in violation of applicable regulations and the U.S. Constitution, that she abused her authority and/or committed reprisal, or that the Navy IG acted arbitrarily, capriciously, in bad faith, and in violation of applicable regulations. The Board also determined that you failed to demonstrate that the Navy IG wrongly applied the standard concerning the withholding of a favorable personnel action, wrongly applied the causation criteria for reprisal, or failed to address or improperly weighed evidence of reprisal. The Board concluded that you failed to demonstrate the necessity for the Board to request the DoD IG or Navy IG to conduct an additional investigation. The Board also concluded that there is no probable material error or injustice warranting modification of your contested Fitness Report & Counseling Record or removal of your FY 2020 failure of selection. 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, 7/28/2021 Executive Director