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 25 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. The Board also considered the enclosed 8 March 2019 advisory opinion (AO) furnished by the Office of Legal Counsel (PERS-00J) and your 24 February 2020 rebuttal. The Board carefully considered your request to remove your 21 June 2016 nonjudicial punishment (NJP) and restore all forfeitures of pay, and to remove both your letter of reprimand and your evaluation report and counseling record for the reporting period 12 August 2015 to 26 June 2016. The Board considered your contentions that, after your NJP, an administrative separation board (ASB) determined that you did not commit misconduct based on a lack of evidence in the government’s exhibits to support a preponderance standard, a lack of any witnesses to support the government’s case, a large group of significant and credible character witnesses who testified under oath, and polygraph evidence. The Board noted that, on 21 June 2016, you received NJP for violation of the Uniform Code of Military Justice (UCMJ), Article 81 (conspiracy), Article 92 (failure to obey order or regulation), and Article 134 (obstructing justice). Before accepting NJP, you were advised of your right to refuse NJP and demand trial by court-martial, afforded an opportunity to consult counsel prior to accepting NJP, and advised of your right to appeal the NJP. You were awarded a letter of reprimand, forfeiture of half months’ pay for two months, and 45 days’ extra duty. On 21 June 2016, you were issued an Administrative Remarks (Page 13) entry counseling you for your deficiencies in performance and conduct for violation of the UCMJ, Articles 81, 92, and 134. You were advised of recommended corrective action, available assistance, and the consequences of any subsequent violations of the UCMJ. On 5 July 2016, you appealed your 21 June 2016 NJP, alleging that the punishment was “unjust and disproportionate to the offenses.” You asserted that the mast was held in an auditorium because your commanding officer (CO) wanted to make an example out of you and two other chiefs, depriving you of “many rights.” In your appeal, you also asserted that the time between being charged (notification of intent to impose NJP) and the NJP proceedings was less than 20 hours, and that, if you would have had the opportunity to carefully review the charges with proper legal counsel, you would have contested the allegations that you violated Article 134, UCMJ, because, you claimed, the Article 134 charge is vague and does not explain how you impeded a command investigation; you were not enrolled with class 15020; the Article 81 and Article 134 charges applied to someone else and should not have been levied against you; you were not shown evidence to support the alleged charges; your command was unable to produce a document that outlined what conditions are punishable under the UCMJ for violation of the Academic Honor Code (AHC); you were forced into accepting NJP; and, following your NJP proceedings, your CO spoke to several Service members and subsequently dropped their charges or reduced their punishments, demonstrating that the investigation was inaccurate and incomplete. You also requested that your commander take into consideration your honorable and distinguished service of over 12 years, the impact the punishment had on your family due to the forfeitures of pay, and that the investigation may not have been fair. You appeal was denied. You were issued an adverse evaluation and counseling record (Eval) for the reporting period 12 August 2015 to 15 September 2016 due to your disenrollment from the Surface Warfare Medical Institute Independent Duty Corpsman Program for violation of your command’s AHC. In your 22 September 2016 rebuttal, you challenged the validity of the Eval, because a panel had not convened to determine if you had violated the AHC. You also denied violating the AHC policy, and offered the results of your 8 August 2018 psychophysiological detection of deception (polygraph) examination as evidence. On 21 June 2016, you were notified of your commander’s intent to process you for administrative separation by reason of misconduct due to commission of a serious offense, as evidenced by your involvement in multiple USMC violations. You were advised of your rights and elected an administrative board, to consult and be represented by counsel, and to submit a written statement for consideration by the separation authority. The administrative separation board (ASB) convened on 12 January 2017 and, by a vote of 3 to 0, found that the preponderance of evidence did not support the basis for separation alleged (misconduct due to commission of a serious offense for violation of Articles 81, 92, and 134, UCMJ). The ASB recommended your retention in the naval service, and your CO concurred with the recommendation. The Office of Legal Counsel (00J), Navy Personnel Command, reviewed your request for correction and provided an AO to the Board. 00J determined that your contentions are without merit, and recommend that the Board disapprove your request. 00J also determined that your argument boils down to the supposition that, because the ASB did not find misconduct, the NJP is void. The AO noted that your NJP and the administrative separation process were separate and independent. Specifically, the AO noted that NJP is a statutory proceeding with numerous safeguards built in for the accused. The AO determined that, because you were stationed at a shore command, you had the right to consult with counsel and to refuse NJP. The AO noted that the record indicates that you initially opted for and then declined counsel prior to accepting NJP, and after having been informed of your rights, you opted to proceed with NJP. Additionally, the AO noted that, after your NJP, you availed yourself of your rights to request clemency and to appeal the NJP findings, and that your appeal was considered and denied. Additionally, the AO noted that you availed yourself to other administrative measures, including the submission of statements to accompany your PLOR and adverse Eval, and to an ASB. The AO noted that the administrative separation process is an administrative employment process and is not intended—nor does it function—as a method to overturn or invalidate other Navy procedures or administrative actions, and that, although a NJP can serve as the initial basis for beginning the administrative separation process, it is the underlying conduct that an ASB ultimately considers. The AO further noted that, because NJP is non-judicial, its findings, unlike those of a court, are not binding upon an ASB. The AO noted that, although your ASB did not find sufficient evidence to warrant your separation from the Navy, that does not impact the validity of the NJP findings, and that it is conceivable and permissible that the two processes with separate considerations and purposes may arrive at different findings. In your 24 February 2020 rebuttal, you argue that the AO fails to address the specific errors and injustices raised after your NJP and throughout your ASB. You also rebutted the opinion that the non-judicial process and the administrative separation process are completely separate and independent. You specifically noted that both processes relied on the same command investigation, and that the same command that directed and endorsed the investigation also notified who was going to be offered NJP, decided your NJP appeal, and ultimately notified you that you would be processed for separation. In your rebuttal, you also described how abuses can occur when both processes involve the same individual, the same evidence, and the same standard of proof, but noted that the interrelationship between the two processes can also provide a system of checks and balances to highlight errors and injustices that might exist in one or the other processes. You assert that such abuse occurred when you were provided your Administrative Separation Processing Notice (NAVPERS 1910/31), dated 20 June 2016. You contend that, because the notice predated your NJP, it clearly illustrates that your command had already determined that you were going to be found guilty at NJP, and that they were going to try and administratively separate you from the Navy. The Board noted that, although the NAVPERS 1910/31 was dated the day prior to your office hours, the relevant issue is the date you were actually advised of your administrative separation processing, which was on 21 June 2016, after the imposition of NJP. The Board determined, therefore, that your contention is speculative and without merit. The Board also considered your contention that you were notified that the Defense Services Office (DSO) would not be able to provide you with a consultation, and after being notified that you would not be able to consult with counsel, you reluctantly changed your election and declined your right to consult with an attorney. The Board, however, noted that the record reflects that you initially elected to consult counsel prior to your NJP hearing, but later waived that right because, after you were purportedly told that DSO was going to conduct the consultations in groups, you chose to declined consultation with an attorney. The Board determined that you were not denied your right to consult counsel, but instead, you declined that right. The Board concluded that your contention that you were denied your right to consult counsel is without merit. The Board considered your contention that your command master chief falsely led you into believing that, if you refused NJP, your command had you “dead to rights” to find you guilty at a court-martial, and that your command master chief also threatened a witness who was going to testify on your behalf. The Board noted, however, that there is no evidence in the record, and you submitted none, to substantiate that you or any of your potential witnesses were threatened. Additionally, the Board noted that criminal courts have a much higher standard of proof—beyond a reasonable doubt—than that applicable at NJP, which requires only a preponderance of the evidence, and that you were advised of your right to demand trial by court-martial in lieu of NJP but did not do so. Therefore, the Board concluded that your contention that you were threatened into accepting NJP is without merit. The Board considered your contention that you were denied the right to review the command investigation before your NJP. The Board noted that there is no evidence in the record, and you submitted none, that you requested, and were denied, your right to review evidence prior to accepting NJP. The Board concluded that this contention is without merit. The Board considered your contention that you had no time to prepare a defense for your NJP. The Board noted that no law or regulation requires a waiting period before NJP may be imposed. Instead, at any time before your punishment was imposed, you could have demanded trial by court-martial in lieu of NJP, but you did not do so. The Board thus concluded that this contention is without merit. The Board considered your contention that your ASB determined that you did not commit misconduct, based on a lack of evidence in the government’s exhibits to support a preponderance standard, a lack of any witnesses to support the government’s case, a large group of significant and credible character witnesses who testified under oath, and polygraph evidence. The Board, however, substantially concurred with the AO, noting that, although the ASB did not find sufficient evidence to warrant your separation from the Navy, that does not invalidate the contrary findings at your NJP, and that it is conceivable and permissible that the two processes, with separate considerations and purposes, may arrive at different findings. The Board also noted that the imposition of NJP and the denial of your appeal were within your chain of command’s discretionary authority, and concluded that you did not furnish sufficient evidence demonstrating 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 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.