DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 1575-19 Ref: Signature Date Dear This letter is in reference to your 6 February 2019 reconsideration request. You previously petitioned the Board for Correction of Naval Records (Board) and were advised that your applications had been disapproved and partially approved. 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 that the evidence submitted was insufficient to establish the existence of probable material error or injustice. Consequently, your application has been denied. In your previous petitions to the Board, you requested that the Navy Inspector General (NAVIG) investigation of which you were the subject be deemed unsubstantiated, that all adverse documents associated with that investigation be removed from your record, and that your 8 December 2011 non-judicial punishment (NJP), your associated fitness reports, and your detachment for cause (DFC) be removed from your official military personnel file (OMPF). You also requested that a special selection board (SSB) be convened to consider you for promotion to the grade of captain/O-6. In your current application, you request the removal or expungement of the NAVIG investigation report from your OMPF, and from Department of the Navy (DON) and Department of Defense (DoD) databases. Alternatively, you request that the conclusion of the NAVIG’s investigation be changed from substantiated to unsubstantiated. You also request to set aside the removal of your name from the Fiscal Year (FY) 2014 Captain Special Selection Board (SSB) promotion list, and to retroactively promote you to the grade Capt/O-6 with backpay and allowances. A three-member panel, sitting in executive session, considered your most recent application on 28 January 2020. 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 contention that, because section 1552(a), Title 10, U.S. Code, provides that “[t]he Secretary of a military department may correct any military record of the Secretary’s department when the Secretary considers it necessary to correct an error or remove an injustice,” (emphasis added in your request), and contains no exception for IG reports, the Board, in its 23 January 2017 decision, construed its authority too narrowly and thus failed to address and resolve a non-frivolous material issue, contrary to Frizelle v. Slater, 111 F.3d 172 (D.C. Cir. 1997). You also contend that the purportedly erroneous removal of your name from the promotion list rested on this incorrect understanding of the Board’s authority, and its resulting failure to address and resolve the non-frivolous material issue regarding the NAVIG investigative report. The Board noted that it denied your 24 April 2015 request. The Board also noted that it previously granted partial relief by removing from your record your NJP, fitness report for the reporting period 1 May 2011 to 10 December 2011, DFC, and FY 2014 through FY 2018 failures of selection to the grade of Capt/O-6, and authorizing a SSB for remedial promotion consideration. The Board, however, previously declined to deem the NAVIG’s investigative findings unsubstantiated and to grant your promotion to the grade of captain. The Board previously concluded that the NAVIG’s investigation fell outside the purview of the Board’s corrective authority. At the same time, the Board noted that your OMPF does not contain a copy of the NAVIG investigation, and that the determination whether to promote you to the grade of captain is to be made through the SSB process and subject to review and approval of entities outside the Board’s authority. The SSB previously directed by the Board selected you for promotion to the grade of captain. Upon review of your selection, however, the Commander, Navy Personnel Command (CNPC) notified you and the that your nomination for promotion was being withheld due to adverse or reportable information. In response to the notification, you alleged that (1) interviews conducted by the did not comply with the protocol set forth in the NAVIG Investigations Manual, resulting in a flawed investigation; (2) the investigator ignored or failed to develop relevant information from witnesses; (3) the investigator failed to interview witnesses who had relevant first-hand information; (4) the investigator presented witness testimony out of context and without sufficient corroboration, in order to reach a predetermined conclusion; (5) the investigator failed to evaluate or even discuss witnesses; (6) the investigator treated uncorroborated assertions as fact; (7) a complainant improperly influenced others before and during the investigation; (8) your conduct did not violate the Navy regulation prohibiting sexual harassment in the form of a hostile work environment; (9) you did not assault or use derogatory or defamatory language to or about subordinate officers; (10) you did not improperly restrict subordinates from communicating with the IG; and (11) you were not afforded an opportunity to comment on the allegation that you restricted protected communications. On 19 April 2018, the responded to the CNPC and determined that, notwithstanding the reports alleged inconsistencies, elements of the investigation report and associated sworn witness interview transcripts concerned him regarding your fitness for promotion to the grade of captain. Specifically, in his view, your behavior endorsed a ready-room dynamic that placed you in questionable environments with your direct subordinates, where relative degrees of unfitting behavior (ranging from horseplay to potential sexual harassment and assault) were left open to interpretation by junior officers. He concluded that you failed to recognize that your own conduct obscured the distinct lines of disrespect and demeaning activity that you were entrusted to make clear for all of your subordinates. Further, he viewed your actions during the events outlined in the IG investigation as contrary to the Navy Ethos, and, in his opinion, they precluded your promotion. Therefore, he did not recommend that you be promoted. The Board noted your 23 April 2018 response to the Chief of Naval Research and the favorable letter from one of the individuals named in the investigation. On 31 October 2018, the Secretary of the Navy (SECNAV) approved the removal of your name from the FY 2014 Active-Duty Navy Captain Line (URL) SSB promotion list. The SECNAV stated that he thoroughly reviewed the NAVIG’s findings, the BCNR decision, the information submitted by you, and the comments from your chain of command. He noted that the BCNR had previously granted relief and directed corrections to your official record. Considering the totality of the information, including your observations concerning the alleged flaws in the NAVIG’s investigation, the SECNAV determined that the record showed that you did not demonstrate the exemplary conduct expected from commanding officers and others in positions of authority. Accordingly, the SECNAV concluded, as a matter within his discretion, that he did not have the necessary trust and confidence to recommend your promotion to the grade of captain. On 6 November 2018, the CNPC notified you that the SECNAV removed your name from the promotion list. The Board determined that your contention that it previously construed its authority too narrowly and thus failed to consider your contentions regarding the NAVIG’s report of investigation (ROI) has merit. The Board agrees that a NAVIG ROI is a “military record of the Secretary’s department.” The Board incorrectly determined that it lacked jurisdiction to correct an error or remove an injustice in such a record. The Board notes, however, that determinations of whether corrective action is warranted in such cases—and the form of that action—are matters within the Board’s discretion, and it declines to exercise that discretion to do so in this case. First, the Board noted that, even if there is an error or injustice in the NAVIG ROI, section 1552(a) permits the Secretary to decline to take corrective action, and the Board declines to do so here, because of the significant institutional costs related to the importance of maintaining un-amended law enforcement ROIs. Amendment of such records would impose an impossible administrative burden by requiring investigations to be continually reinvestigated, which is one reason NAVIG ROIs are exempted from the amendment provisions of the Privacy Act. See 32 C.F.R § 701.128(i)(4)(ii). Moreover, the purpose of an investigation is not to prove or disprove an allegation of criminality, or to establish the guilt or innocence of an individual. In contrast, a ROI is merely the repository for facts tending to prove or disprove an allegation, gathered through observation, interviews, and examination of documentary or physical evidence, obtained during the course of an investigation.