DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 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 16 September 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. The Board determined your personal appearance, with or without counsel, would not materially add to their understanding of the issues involved. Therefore, the Board determined a personal appearance was not necessary and considered your case based on the evidence of record. The Board carefully considered your request to remove the Naval Criminal Investigative Service (NCIS) Report of Investigation (ROI) dated 21 July 2014 and the Chief of Naval Operations (CNO) Action Memorandum dated 1 July 2019 from your record. Specifically, you contend the NCIS ROI should be removed because it is factually incorrect and misleading due to statements from non-credible witnesses. As evidence the NCIS ROI is factually incorrect and misleading, you contend a civilian jury found you “not guilty” of the charges stemming from your 4 July 2014 arrest. Additionally, in support of your contention, you submitted a declaration from the civilian attorney who represented you at your civilian trial. You further contend the CNO Action Memo is in error and unjust because the CNO relied upon the same false information contained in the NCIS ROI. Lastly, you contend the false and misleading NCIS ROI has unjustly resulted in your removal from the Fiscal Year (FY) 2019 Active-Duty Navy Lieutenant Commander (LCDR) (Unrestricted Line (URL)) promotion list, your subsequent failure of selection by the FY 2021 Active-Duty Navy LCDR URL promotion board, and your inability to follow your career path as a Navy SEAL officer. The Board, however, noted it cannot remove or modify a NCIS investigation, but it can review a NCIS decision to remove a titling after you have exhausted your available administrative remedies. Specifically, you should first seek NCIS review of its decision to title you in its ROI. Additionally, you may also request that their records reflect the disposition of the charges. However, assuming arguendo the Board could remove the NCIS ROI, the Board noted there was insufficient evidence of an error or injustice in the NCIS ROI. Specifically, the Board, noting the standard of proof at a criminal trial is beyond a reasonable doubt, concluded a not-guilty determination by the court does not subsequently render the NCIS ROI as factually incorrect or misleading. Further, your civilian counsel’s declaration, without supporting evidence, was determined to be insufficient in establishing the NCIS ROI as factually incorrect or misleading. The Board also specifically noted your counsel’s contention that the command’s decision to not take punitive action against you because “the true facts did not warrant such action” but concluded this fact, even coupled with the not-guilty determination, does not support the removal of the NCIS ROI. The Board considered your request that the CNO Action Memo should be removed. In its review of the CNO Action Memo, the Board noted you were afforded an opportunity to present a statement and evidence for the CNO and Secretary of the Navy (SECNAV) to consider. Although the statement itself was not available to the Board, it was noted you exercised your due process rights as reflected by the CNO’s reference to your statement in his action memo to the SECNAV. Further, the CNO noted your Commanding Officer’s endorsement and recommendation for promotion which indicates your chain of command was provided an opportunity to comment on your contention the NCIS ROI was false and misleading. Lastly, the Board noted the CNO recommended your removal from the promotion list because he independently found your actions to be an unacceptable deviation from the sound judgement and exemplary conduct expected of a naval officer and, as a result, he did not have the necessary trust and confidence to recommend you for promotion to LCDR. Even recognizing your exemplary performance after reviewing your submitted fitness reports, the Board concluded there was insufficient evidence of an error or injustice in the CNO’s Action Memo and the resulting decision by the SECNAV to remove your name from the FY19 Active-Duty Navy LCDR URL promotion list. 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, 10/01/2021 Executive Director