DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490
 
Docket No: 8828-18 
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.  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 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. 
 
A three-member panel of the Board, sitting in executive session, considered your application on 3 December 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, as well as the enclosed 2 April 2019 advisory opinion (AO) furnished by Navy Personnel Command (NPC), Navy Flag Officer Management, Distribution and Development Branch.  The AO was provided to on 28 October 2019, and you were given 30 days in which to submit a response.  When you did not provide a response, your case was submitted to the Board for consideration. 
 
The Board carefully considered your request for retroactive promotion to rear admiral (RADM)(lower half)/O-7 based upon your selection for promotion by the Fiscal Year (FY) 2008 Reserve Flag Promotion Board.  The Board considered your contentions that the decision to withdraw your promotion was not reasonable, justified, or defensible in light of the facts, promotion process, and the law.  You also contend that you did nothing to bring discredit upon yourself or the Navy, as shown by the Navy Inspector General’s (NAVIG’s) findings and the recommendations of the promotion selection board and the promotion review board (PRB), both of which found you fully qualified for promotion.  
 
The Board, however, substantially concurred with the AO that there is insufficient evidence that to disturb the recommendations of the Chief of Naval Operations (CNO), Secretary of the Navy (SECNAV), and Secretary of Defense (SECDEF) that you not be promoted, and the President’s withdrawal of your nomination for appointment.  The Board noted that you were in fact selected for promotion by the FY 2008 Reserve Navy Rear Admiral (Lower Half) Line Board, but your nomination was placed on hold pending the outcome of the NAVIG investigation into allegations that you were arrested for soliciting prostitution during December 1997.  The Board also noted that you pleaded no contest to a reduced charge of disorderly conduct and breach of peace, and later petitioned the court to seal your record.  On 24 August 2007, a PRB recommended two-to-one in support of your promotion to O-7, but the CNO did not concur with the PRB’s recommendation.  The CNO determined that, in light of the facts and circumstances of your arrest and subsequent “nolo contendere plea,” he did not have the requisite faith and confidence in your moral qualifications for promotion, particularly for flag officer rank.  On 6 May 2008, the SECNAV recommended the removal of your name from the promotion list.  The SECDEF concurred with that recommendation and recommended that the President withdraw your nomination.  On 28 August 2008, the President withdrew your nomination for appointment to RADM (lower half).  The Board determined that you did not present substantial evidence to support your contentions.  The Board thus concluded that there is no 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,