DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490 

Docket No. 3157-18 
AUG 19 2019 


This letter is in reference to your reconsideration request dated 12 April 2018. You previously petitioned the Board for Correction of Naval Records (Board) and were advised that your application had been disapproved. Your case was reconsidered in accordance with Board procedures that conform to Lipsman v. Sec'y of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004). After careful and conscientious consideration of the entire record, the Board found the evidence submitted was 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 26 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, relevant portions of your naval record, and applicable statutes, regulations, and policies. 

On 18 January 1979, you enlisted in the Navy Reserves. On 22 June 2001, you were selected by the Limited Duty Officer (LDO) program to be commissioned in February 2002. On 3 October 2001, you were mobilized under official recall to active duty. On 15 February 2002, you were released from active duty and transferred to the Navy Reserves. On 24 February 2002, you signed your Officer Appointment Acceptance and Oath of Office (NAVPERS 1000/4). 

You request that the effective date of your NAVPERS 1000/4 be changed; that your date of rank (DOR) to the grade of commander (CDR)/0-5 be changed to 1 October 2017; that processing of your request for reconsideration be expedited; and that advisory opinions be obtained from OPNAV N095, PERS-8, and PERS-35. The Board carefully reviewed your entire record and application. 

You contend that because you were mobilized and thus unable to sign your acceptance of appointment and oath of office on your assigned LDO ensign DOR, 1 February 2002, your precedence number is less than it would have been had you signed on that date. As a result, you claim that another officer, whose precedence number would otherwise have been junior to you, is senior to you in precedence. You contend that this constitutes an injustice because you "may potentially be excluded from an upcoming promotion zone due to [your] officer precedence number." The Board, however, determined that you have not shown a probable material error or injustice in your date of acceptance of appointment and oath of office warranting corrective action. 

The Board found that there is no probable material error in your date of acceptance of appointment and oath of office. In this regard, the Board notes that you do not dispute that you signed your Officer Appointment Acceptance and Oath of Office (NAVPERS 1000/4) on 24 February 2002. Moreover, the Board does not agree with your assertion that "Reference (a) [OPNAVINST 3060.7B] is the authoritative instruction pertaining to mobilization and demobilization of Navy [R]eservists." That instruction is dated 25 April 2006, over four years after your commissioning date. The Board determined, instead, that OPNAVINST 1420.1 dated 17 July 2000 pertains to your case. Chapter 14, paragraph 4(e) of that instruction provides "Selected Reservists on Active Duty for Special Works (ADSW), One Year Recall (OYR) may seek appointment to LOO or CWO via the Inactive Duty LDO or CWO program. If selected, they will have their active duty status terminated and will receive permanent appointment in the Naval Reserve." Paragraph ll(c) provides "All original appointments become effective for pay purposes upon acceptance, but not earlier than the date of rank assigned." Paragraph 11 (f) provides "Appointees will be honorably discharged from their enlisted status for the convenience of the government to accept permanent appointment to officer grade." The Board noted that paragraph 2(0) of the 22 June 2001 message announcing your selection provides that "ENS and CWO Selectees shall be discharged from enlisted status in order to accept their Reserve Officer Appointment." 

The Board also found that there is no injustice in your date of acceptance of appointment and oath of office. You claim that another officer with the same DOR, whose precedence number would otherwise have been junior to you, is senior to you in precedence. You contend that this constitutes an injustice because you "may potentially be excluded from an upcoming promotion zone due to [your] officer precedence number." The Board disagreed. In this regard, the Board noted that you provide no evidence to support your claim that you "may potentially be excluded from an upcoming promotion zone due to [your] officer precedence number." Moreover, the Board noted that your own evidence shows that, had your date of acceptance been the same as the other officer's, you would have been senior to him in precedence only by virtue of your date of birth-a circumstance, like your mobilization, over which one has no control. 

Regarding your request that your DOR to CDR/0-5 be changed to 1 October 2017, the Board determined that you have not shown a probable material error or injustice warranting corrective action, for the same reasons that you have not shown a probable material error or injustice in your date of acceptance of appointment and oath of office, as discussed above. 

The Board's procedures do not require the Board to request advisory opinions or to expedite consideration of applications. In this case, the Board determined that neither advisory opinions nor expedited consideration of your case was necessary. 

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. 

It is regretted that the circumstances of your reconsideration petition are such that favorable action cannot be taken. You are entitled to have the Board reconsider its decision upon the 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 the absence of new matters for reconsideration, the decision of the Board is final, and your only recourse would be to seek relief, at no cost to the Board, from a court of appropriate jurisdiction. 

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, 


Executive Director