DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 1966-18 Ref: Signature Date Dear : This letter is in reference to your application for correction of your naval record pursuant to Title 10, United States Code, Section 1552. A three-member panel of the Board, sitting in executive session, considered your application on 12 March 2019. 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, your naval record, as well as applicable statutes, regulations, and policies. Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel will 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. On 11 August 2013, you were arrested by civil authorities for burglary, public intoxication, and resisting arrest. According to the arrest report, you ran from the police after they approached you. At the time, you were attempting to gain entry into an apartment on the third floor of a building that was undergoing construction. You also admitted to entering a fraternity house without permission, falling asleep on a couch in the basement, and stealing a flag from the house. Due to the perceived level of intoxication, the police determined you were a danger to yourself and placed you under arrest. On 3 October 2013, civil authorities ordered all charges dismissed upon completion of Navy alcohol education classes, ten Alcoholic Anonymous meetings, proof of negative drug test, 24 hours of community service, and payment of court costs. Your commander took no punitive action against you, and you were subsequently promoted to lieutenant (junior grade). On 19 September 2014, you successfully completed the prescribed course of instruction and were designated as a Naval Aviator. On 3 September 2015, ALNAV 071/15 announced the fiscal year 2016 (FY16) Active-Duty Navy Lieutenant All-Fully-Qualified-Officer-List (AFQOL) selections. You were notified that your promotion to lieutenant (LT) was being withheld to allow for review of adverse information. You were given the opportunity “to submit a statement to assist the SECNAV in determining your suitability for promotion and to explain, rebut, mitigate, or otherwise address any information, testimony, or references to you in the report of investigation or any supporting documentation.” In response, you submitted a statement requesting promotion to LT, and explained that you were not “charged with burglary third degree.” You also explained that you understood the seriousness of the allegations that occurred over two years ago, that you were extremely remorseful for your actions, and that you are committed to never repeating that type of behavior. You emphasized that you have maintained a superb record in the work place and you continue to dedicate yourself to being an exemplary naval officer, aviator, and upstanding citizen. You also pointed out that you had completed the Navy's Alcohol IMPACT class and attended several AA meetings. Your commanding officer recommended that you be promoted. However, the Chief of Naval Operations (CNO) recommended that your name be removed from the FY16 AFQOL. The CNO, with full consideration of your statement and the support of your chain of command, nevertheless determined that your actions were contrary to the accepted conduct and behavior expected of a naval officer when you were arrested, and that he did not have the necessary trust and confidence to recommend your promotion to LT at that time. The CNO concluded “I am conscious of affording an additional period of time to observe [your] professional conduct.” On 3 January 2017, the Secretary of the Navy (SECNAV) removed your name from the FY16 AFQOL. Your removal from this list constituted a failure of selection (FOS), and the documentation approving this removal was included in your official military personnel file (OMPF). On 6 October 2017, ALNAV 067/17 announced the fiscal year 2018 (FY18) AFQOL selections. Your name was withheld in order for the SECNAV to review and consider any adverse or reportable information, and to review your complete record in making a promotion determination. In making promotion determinations, the SECNAV can also remove an officer's name from the promotion list if the officer does not meet the exemplary conduct requirements of Title 10, U.S. Code. Ultimately, the SECNAV determined that you were qualified for promotion to LT and assigned a date-of-rank of 1 October 2017. The Board carefully considered your desire for promotion to LT and for administrative and other allowances as a result of the Naval Criminal Investigative Service (NCIS) error in reporting to the SECNAV. The Board also considered your request to expunge any erroneous information, to specifically include reference to the NCIS "report" in your OMPF. The Board considered your contention that the NCIS incorrectly reported an incident with civil authorities to the SECNAV causing an injustice when your promotion selection was withheld. Specifically, you were not "arrested for an alleged burglary third degree (Felony)" sic. Neither is the charge of public intoxication a "misdemeanor." You argued that the record is clear: you were “never arrested for – nor charged with - a felony, and the allegation of public intoxication is not a "misdemeanor" - it is only a violation. Succinctly, the NCIS amped up the allegations causing, - one would conclude - the Secretary to take its action removing [you] from the” FY16 and FY17 AFQOL’s. You contend that the Secretary's action was based upon “bad scoop.” Regarding your request reinstatement on the FY16 AFQOL, the Board noted that the SECNAV reviewed your statement, the facts and circumstances, and your chain of command’s support, and found that you did not meet the criteria for promotion. The Board found no evidence that his decision to remove your name from the AFQOL was dependent on, or even influenced by, the NCIS report. In fact, you made it clear in your statement to the Secretary that you were never charged with burglary third degree. Further, the Secretary’s removal memorandum does not mention the NCIS report but the civil authorities arrest report “…for burglary, public intoxication, and resisting arrest” and specifically states that you were never charged with burglary. The Board determined that there is no evidence the SECNAV violated any instructions or due process in assessing your promotion. The SECNAV ultimately determined your actions warranted removal because you were not qualified for promotion at that time. The Board found no error or injustice in that determination and concluded that reimbursement for all pay and allowances in the grade of LT is not warranted. The Board also noted that, in accordance with Title 10 U.S. Code, an officer in the grade of lieutenant (junior grade) who is on an approved all-fully-qualified-officers list may not be considered for promotion to the next higher grade. The Board concluded, because your name was not yet removed from the FY16 AFQOL, that you were not eligible for consideration when the FY17 AFQOL selections were made. Regarding your desire to expunge any erroneous information, to specifically include reference to the NCIS "report" in your OMPF. The Board determined that the adverse material properly documents the facts and circumstances regarding the removal of your name from the FY16 AFQOL, and you were given the opportunity “to explain, rebut, mitigate, or otherwise address any information, testimony, or references to you in the report of investigation or any supporting documentation.” The Board concluded the documents were filed in accordance with Navy policy and removal is not warranted. It is regretted that the circumstances of your case are such that favorable action cannot be taken. You are entitled to have the Board reconsider its decision upon submission of new matters. 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, 7/11/2019