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

Docket No: 2080-19 
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 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 11 February 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, as well as the enclosed 26 February 2019 advisory opinion (AO) furnished by the Navy Personnel Command (PERS-32).  The AO was provided to you on 6 March 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 to modify your fitness report for the reporting period 19 August 2014 to 28 February 2015 by removing your reporting senior’s (RS) comments “Awarded CO’s Non-Judicial Punishment on 23 January 2015 for Violation of UCMJ Article 128 (Assault).  Concluded on 3 March 2015” and “responded positively to his NJP and has displayed the potential to overcome this isolated event.” The Board considered your contention that your official military personnel file (OMPF) does not contain any adverse material to support the negative statements in your fitness report.   

The Board, however, substantially concurred with the AO’s opinion that your fitness report is valid.  The Board noted that you saw the report, were apprised of your performance and the block 41 comments, and you elected not to submit a statement.  The Board determined that your decision not to submit a statement indicates that you acknowledged the reason for the fitness report and did not object to its basis.  Further, the AO explained that BUPERSINST 1610.10D, the Navy Evaluation Manual, permits RSs to comment on misconduct that has been clearly established to their satisfaction.  The Board determined that, although the lack of documentation in your OMPF is an administrative error, such error is harmless, because it is a fact that you did receive non-judicial punishment (NJP), the RS noted this fact in the report, and you acknowledged receiving NJP.  The Board found no evidence that the RS violated a regulation or that your NJP was set aside.  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

3/20/2020