DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 6018-18 Ref: Signature Date This letter is in reference to your application for correction of your naval record pursuant to Title 10, United States Code, Section 1552. After careful and conscientious consideration of the entire record, the Board for Correction of Naval Records (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 20 August 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. The Board carefully considered your request to remove your 31 October 2016 Administrative Remarks (Page 11) 6105 counseling entry and your 4 November 2016 rebuttal. The Board noted that you were issued the counseling for violation of Article 121 (wrongful appropriation), Uniform Code of Military Justice (UCMJ). The Board considered your contentions that the counseling is misleading and false. You claim the investigations were not conducted in accordance with the Manual for Courts-Martial, the Manual of the Judge Advocate General, the DoD Financial Management Regulation 7000.14-R, or the Joint Travel Regulation, and that investigations were not thorough nor impartial. Specifically, no one in your chain of command initiated or took part in any process of the Preliminary Inquiry (PI) or Command Investigation (CI), other than being interviewed; the erroneous payments did not require investigation; your travel claims were reviewed and approved by appropriate officials; there are no witnesses, and there is no evidence that proves intent to defraud the government; the counseling does mention underpayment errors or authorization you received for an upgraded vehicle; and the counseling condemns you for doing what you were directed to do. You also claim that if you were in violation of the UCMJ, you would have received harsher punishment, and you only received the counseling because “someone” had to held accountable. You assert that your evidence, in conjunction with the CI, prove your claims to be accurate. On 25 August 2016, you were advised of your Article 31(b) rights, and advised that you may be suspected of potential fraudulent travel claims. A 7 October 2016 a CI Report identified several inconsistencies and differences in travel cost from authorization for travel and your completed vouchers, on three different travel packages. The Investigating Officer recommended that you be required to repay all over payments, that you complete training again for DTS card holder and DoD traveler, and that you receive a written counseling. With regard to your contention that the investigation was not conducted in accordance with policy and regulation, even assuming arguendo—but not conceding—that the CI was flawed, as you contend, such error is harmless. “Strict compliance with procedural requirements... ‘is not required where the error is deemed harmless.’” Strickland v. United States, 69 Fed. Cl. 684, 710 (Fed. Cl. 2006) (quoting Wagner v. United States, 365 F.3d 1358, 1361 (2004)). "Mere technical procedural error is insufficient to warrant reversing the agency's administrative decision." Milas v. United States, 42 Fed. Cl. 704, 713 (1999). “The error must be a violation of mandatory published procedure of a substantive nature by which plaintiff has been seriously prejudiced.” Id. (emphasis added). “[N]o changes will be made when the error or injustice is deemed harmless, because harmless errors are not sufficiently significant to change the outcome of a case.” Dolan v. United States, 91 Fed. Cl. 111, 122 (Fed. Cl. 2010) (citing Wagner, 365 F.3d at 1361) (emphasis added). Given your substantiated wrongful appropriation, the Board determined irrelevant your contentions that the overpayments could have been recovered within two years, that your travel claims were reviewed by the appropriate approving personnel, that there is no evidence or witnesses to prove [your] intent to defraud the government, and that the counseling condemns you for what you were directed to do. Here, the Board determined that the entry creates a permanent record of a matter your commanding officer deemed significant enough to document, and your evidence did not prove otherwise. The Board also determined that the entry met the 6105 counseling requirements detailed in MCO 1900.16 (MARCORSEPMAN). Specifically, the entry provided written notification concerning deficiencies/impairments, specific recommendations for correction action indicating any assistance available, comprehensive explanation of the consequences of failure to successfully take the recommended corrective action, and a reasonable opportunity to undertake the recommended corrective action. You were also afforded the opportunity to rebut the contents of the counseling, and that rebuttal is included in your record. The Board determined that your commanding officer’s decision not to impose punishment for your substantiated misconduct does not in any way invalidate the counseling entry. The Board thus concluded that the contested entry does not constitute probable material error or injustice warranting corrective action. 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, 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, 10/5/2019