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

Docket No: 2712-19 
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 24 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, as well as the 10 March 2020 advisory opinion (AO) furnished by the Navy Office of Legal Counsel (BUPERS-00J), and your response.   

The Board carefully considered your request to remove your non-judicial punishment (NJP) received on 28 September 2018.  The Board considered your contentions that your commanding officer (CO) did not have the authority to impose NJP, because you were already detached from the command, and that the preliminary inquiry (PI) was conducted hastily without regard for JAG Instruction 5800.7F, the Manual of the Judge Advocate General (JAGMAN) standards of proof.  You also contend that the punishment was unjust and disproportionate.  You deny all accusations of deceit or falsification of an official document. 

The Board, however, substantially concurred with the AO that your CO did have the authority to impose NJP.  In this regard, the Board noted that you detached from the command on 28 September 2018, the same date as your NJP.  The Board also noted that your CO found you guilty at NJP for violations of Article 92 and Article 107, Uniform Code of Military Justice (UCMJ).  The Board noted too, that you were properly notified of your Article 31, UCMJ, rights, afforded the opportunity to consult with a military lawyer, afforded your right to appeal the NJP, you appealed the NJP, and your request was denied.  The Board determined that your CO has discretionary authority to determine if NJP is appropriate and the amount of punishment.  The Board found no evidence that your CO exceeded his discretionary authority or violated regulations when he awarded your punishment, and you provided none. 

Concerning your contention that the PI was conducted without regard for the JAGMAN standards of proof, the Board noted that the investigating officer found that the signature for the legal section on your check-out sheet was not that of either enlisted command representative, and he concluded that the signature was forged and suspected that you signed the check-out sheet. The Board determined that an administrative investigation is not required to be conducted with the formal rules of evidence that apply to courts-martial.  Moreover, the Board found no evidence that the PI was conducted improperly or in violation of regulations.  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,
 
4/15/2020