DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 4056-17 DEC 11 20171232-14 Dear This is in reference to your reconsideration request received on 2 May 2017. You previously petitioned the Board and were advised in our letter of 1May2016, that your application had been denied. Your case was reconsidered in accordance with Board of Correction ofNaval Records procedures that conform to Lipsman v. Secretary ofthe Army, 335 F.Supp.2d 48 (D.D.C. 2004). Because your application was submitted with new information not previously considered, the Board found it in the interest ofjustice to review your most recent application based on the new evidence provided. In this regard, your current request has been carefully examined by a threemember panel ofthe Board for Correction ofNaval Records on 25 September 2017. The names and votes ofthe members ofthe panel will be furnished upon request. Documentary material considered by the Board consisted of your application and any material submitted in support of your application. The Board noted that you submitted a memorandum through counsel that included an affidavit dated 6 December 2016 from the Commander who issued you a punitive letter ofreprimand. You also submitted a correspondence dated 31 January 2017 from the former Governor of to the Secretary ofthe Navy (SECNA V), a correspondence dated 3 January 2017 from the former Governor of to SECNAV, a correspondence dated 23 December 2015 from your counsel to SECNAV, a correspondence dated 20 December 2016 from you to SECNAV, and a letter from , JAGC, Special Assistant for Legislative Affairs and Special Affairs, on behalfto SECNAV, dated 16 February 2017, advising you ofthe opportunity to request reconsideration ofthe Board's previous decision denying your request for correction. You also provide a copy ofthe Board's prior decision as well as letters ofsupport from Senator Daniel Inouye ofHawaii. In your request for reconsideration, you ask that the Board revisit its previous denial and correct your naval records to reflect a retirement in the grade ofrear admiral (lower half), 0-7 instead of retirement in the grade ofcaptain, 0-6. You again ask for a personal appearance before the Board, and note that this matter is ofsuch importance to you that despite your residency in Hawaii, you would appear before the Board ifpermitted. Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel will not materially add to its understanding ofthe issues involved. Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence ofrecord and on the new information you submitted for reconsideration. The Board noted that in your reconsideration request you assert (1) that the platonic and work relationship between you and the female civilian led to the factually inaccurate allegation that you engaged in an inappropriate relationship, (2) that the decision to retire you as an 0-6 instead ofan 0-7 is both an injustice and an inequity and (3) that the Board is the appropriate body to address the inequity and injustice. You also state that the Commander who issued the punitive letter ofreprimand detailed the reason and the facts to recommend your retirement in the grade of0-7, and ask the Board to consider the Commander's affidavit of6 December 2016. The Board concurs that there is a distinction between an appearance ofimpropriety and actual impropriety. As in its previous decision, the Board again considered whether your conduct that led to the appearance ofimpropriety rather than a confirmed sexual relationship was a sufficient basis for retirement in the grade of0-6. Even in consideration ofthe new and material evidence, and in light of your Commander's recommendation for retirement as a flag officer, the Board again found that the evidence reflected in your records supports the finding that while holding the grade of0-7, you engaged in conduct that created an appearance ofimpropriety and that appearance was sufficient for retiring you in the lower grade of 0-6. The Board again considered whether retirement in the grade of 0-6 is an injustice or inequity given your innovative contributions, outstanding service, and three decades ofservice to the Navy. The Board also considered whether the administrative actions taken against you should have been limited to the punitive letter ofreprimand. The Board specifically considered that recommended retirement in the grade of 0-7, that he issued the punitive letter ofreprimand on the appearance of impropriety, that he determined that you did not engage in \I sexual relationship with the female civilian contractor, and that he had personal knowledge of the situation and its impact on the command. The Board also considered the far-reaching support you have received postretirement for the restoration of your rank. The Board found your conduct that created an appearance ofimpropriety was limited to the time period in which you served as an 0-7, and your prior service in the ranks of 0-6 and below was not diminished by the actions that led to your loss ofrank. Even in consideration ofthe information you provided in support ofyour current application, the Board concluded that retirement in the grade of0-6 was appropriate given that your service as an 0-7 was marred by your actions that led to the appearance of impropriety. The Board noted that retirement in the grade of0-6 is a tremendous accomplishment, and is reflective ofthe contributions you have made to the Navy. After careful and conscientious consideration ofthe record, the Board determined that the statements and information you provided, even though not previously considered by the Board, were insufficient to establish the existence ofprobable material error or injustice. Board again found that your retirement in the grade of0-6 was neither an error nor an injustice. Accordingly, your application has again been denied. It is regretted that the circumstances ofyour reconsideration petition are such that favorable action cannot be taken again. You are entitled to have the Board reconsider its decision upon the submission ofnew and material evidence. New evidence is evidence not previously considered by the Board. In the absence ofsufficient new and material evidence for reconsideration, the decision ofthe Board is final, and your only recourse would be to seek relief, at no cost to the Board, from a court ofappropriate jurisdiction. It is important to keep in mind that a presumption ofregularity attaches to all official records. Consequently, when applying for a correction ofan official naval record, the burden is on the applicant to demonstrate the existence ofprobable material error or injustice. Sincerely, Executive Director