DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 2512-19 Ref: Signature Date This letter is in reference to your application of 22 February 2019 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. A three-member panel of the Board, sitting in executive session, considered your application on 31 March 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 6 June 2019 advisory opinion (AO) furnished by the Navy Personnel Command (PERS-32) and your 2 August 2019 rebuttal. The Board noted that, on 21 August 2017, you received non-judicial punishment (NJP) for eight specifications of violation of Article 107 (false official statement) of the Uniform Code of of Military Justice (UCMJ). You appealed your NJP, and on 7 November 2017, the Commander, found that your NJP was just and proportionate to the offenses committed, and he denied your appeal. On 11 December 2017, your Commanding Officer (CO) reported to the Commander, Navy Personnel Command (PERS-834), your 21 August 2017 NJP, and he also requested that you be detached for cause (DFC). Consequently, you received an adverse fitness report and counseling record for the reporting period 1 March 2017 to 31 January 2018. You acknowledged (signed) the report and chose to submit a statement. However, your statement was not endorsed and forwarded to PERS-32 for inclusion in your official military personnel file (OMPF). The Board noted that your DFC was approved by PERS-834, and your CO issued you a not-observed detachment of individual fitness report for the reporting period 3 August 2018 to 31 August 2018. You were also ordered to show cause before a Board of Inquiry (BOI) for retention in the naval service. The BOI found by a vote of 3 to 0 that the preponderance of the evidence did not support separation based on misconduct for violation of the UCMJ, Article 107, but that the preponderance of the evidence supported your separation based on your substandard performance by failing to conform to prescribed standards of military deportment. The BOI, however, determined that, although the reason specified was supported by the evidence, separation for cause was not warranted. The BOI, therefore, recommended that you be retained in the naval service. Your fitness reports as well as matters pertaining to your NJP and DFC were filed in your OMPF in accordance with Navy regulation. The Board carefully considered your request to remove your fitness report for the reporting period 1 March 2017 to 31 January 2018, to remove your detachment for cause (DFC) letter, and to redact “Detachment for Cause” from your fitness report for the reporting ending 31 August 2018. The Board considered your contention that the BOI found that you were not guilty of violation of Article 107, UCMJ and therefore there is no basis for the contested fitness reports. The Board also considered your contentions that you submitted several rebuttal statements to your fitness report ending 31 January 2018, but your reporting senior (RS) did not endorse and forward them for inclusion in your OMPF, and that the fitness report allowed your RS an opportunity to unfairly skew unfavorable information, be selective in facts, disregard relevant and supporting facts regarding disparity and unfair treatment that negatively impacted and jeopardizes your career. Additionally, you contend that the AO selectively uses the decision of the legal and binding military BOI for which you were exonerated. The Board, however, determined that your contention that the BOI found that you were not guilty of violation of Article 107, UCMJ, and therefore invalidated your contested fitness reports and DFC is without merit. In this regard, the Board noted that a BOI is an administrative separation process. Title 10, U.S. Code, Section 1182 provides for BOIs to receive evidence and make a finding and recommendation as to whether an officer who is required to show cause for retention should be retained. It does not give the BOI authority to determine guilt or innocence. Additionally, BOI recommendations to retain an officer in the Navy does not exonerate the officer from findings at NJP. The Board determined that it was within your CO’s discretionary authority to charge you with violation Article 107, UCMJ, based on a preponderance of the evidence. The Board determined that it was also within your CO’s discretionary authority to request your DFC, and that you were afforded the opportunity to dispute, in writing, any material contained in the Report of NJP, for consideration by your chain of command and the Navy Personnel Command (PERS-834). With regard to your fitness reports, the Board substantially concurred with the AO that both reports are valid. The AO noted that, pursuant to BUPERS Instruction 1610.10D (EVALMAN), RSs are allowed to comment on misconduct that has been clearly established to their satisfaction. In your case, your CO found you guilty at NJP proceedings on 21 August 2017 for violation of the UCMJ, Article 107. You exercised your right to file an appeal of the NJP, and it was determined that there was sufficient evidence to support the guilty finding and that the punishment awarded was not unjust or disproportionate to the offense. Additionally, your DFC was approved, and is appropriately documented in block 41 of your fitness report ending 31 August 2018. The Board determined that you were afforded the opportunity to submit matters in rebuttal of your 31 January 2018 report, but your response did not meet the requirements set forth in the EVALMAN. The AO further noted, and the Board concurred, that there is nothing in your petition to substantiate that your RS acted for illegal or improper purposes or that the fitness reports lacked rational support. 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 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, 5/29/2020