DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No. 7315-18 Dear 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 that the evidence submitted was insufficient to establish the existence of probable material error or injustice. Consequently, your application has been denied. Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel would not materially add to its 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. A three-member panel of the Board, sitting in executive session, considered your application on 1 October 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 also considered the 21 February 2019 advisory opinion (AO) furnished by JAGC, and your 12 September 2019 rebuttal. The Board carefully considered your request to reverse the withdrawal of your advancement to E-6, and to remove your 6 June 2018 Administrative Remarks (Page 13) and Evaluation Report and Counseling Record (Eval) for the reporting period 28 November 2017 to 6 June 2018 from your official military personnel file (OMPF). The Board considered your contentions that the withdrawal of your advancement recommendation was in error and unjust for the following reasons: (1) it was based on unfounded allegations; (2) it was submitted after the effective and limiting dates of advancement; (3) it was done in reprisal for your refusal of nonjudicial punishment (NJP) and your election of your right to trial by court-martial; and (4) you have not appeared before a discharge review board (DRB), executive officer inquiry (XOI), NJP, or court-martial regarding any of the alleged offenses. The Board also considered your rebuttal contention that all charges against you were either dismissed prior to court-martial or you were found not guilty, and that the entry annotating your refusal to sign your Page 13 was not signed by an officer. The Board noted that your commanding officer (CO) withdrew his recommendation for your advancement following a command investigation (CI) into allegations that you made discriminatory and unprofessional comments in the workplace. As part of the Board’s review, JAGC, reviewed your request and provided an AO to the Board. The Board substantially concurred with the AO that the withdrawal of the recommendation for your advancement was proper and timely, and that the authority to withdraw your recommendation was the prerogative of your then-commanding officer (CO). With regard to your contention that the withdrawal was based on unfounded allegations, the Board concurred with the AO that your CO’s withdrawal of the recommendation for your advancement was based on the findings of the CI, and your statements, behavior, and performance. Your CO stated that he withdrew his recommendation due to concerns about you not valuing diversity and inclusion in the workplace and a general lack of professionalism. With regard to your contention that the withdrawal was submitted after the effective and limiting dates of advancement, the Board noted that, pursuant to BUPERSINST 1430.16G, “COs/OICs may withdraw a recommendation for advancement at any time, prior to the advancement effective date, if the member is determined to no longer qualify for advancement.” In order to withdraw a recommendation for advancement, a CO must prepare and sign a SP evaluation, and “an evaluation is the sole means of withdrawing a member's recommendation for advancement and must be completed prior to requesting invalidation of an authorized advancement.” The Board noted that your CO/reporting senior signed your Eval on 8 June 2018; your senior rater signed the Eval on 15 June 2018; and the rater signed the evaluation on 18 June 2018. Your refusal to sign the Eval is documented, but there is no corresponding date. Additionally, your Page 13 counseling is dated 6 June 2018, and documents your refusal to acknowledge (sign) the document. The Board thus determined that the Eval and Page 13 were completed prior to your advancement and limiting dates, and that your assertion that the 3 July 2018 message to Naval Education and Training Professional Development Center (NETPDC) requesting withdrawal of the recommendation for your advancement was untimely is immaterial based on the fact that your command had made the proper notification previously on 12 June 1208. The Board also determined that your assertion that the Page 13 is not valid due to the fact that your CO did not sign it is also unsupported. The Page 13 file in your OMPF is signed by your then-CO. The Board also concurred with the AO and determined that there is no evidence to support your assertion that withdrawal of the recommendation for your advancement constitutes reprisal. With regard to your contention that you have not appeared before a DRB, XOI, NJP, or court-martial, the Board noted that a CO’s withdrawal of a recommendation for advancement is an administrative action, completely separate from DRB, XOI, NJP and/or court-martial. The fact that your CO did not take any disciplinary action did not preclude him from withdrawing his recommendation for your advancement. 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 the submission of new matters, which will require that you 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.