Dear : 
 
This letter is in reference to your application of 16 March 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 21 April 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 request to remove from your record the 5 March 2018 and 21 March 2018 Reports of Misconduct (ROMs), and your Detachment for Cause (DFC) documentation.  The Board also considered your request to remove your fitness report for the reporting period 1 November 2017 to 31 October 2018, or alternatively, to have your remarks in response to the fitness report added to your official military personnel file (OMPF). 
 
The Board noted that, on 15 December 2017, a command investigation (CI) was initiated into allegations of spousal abuse and threatening statements made by you against your ex-wife in 2011.  The CI revealed that you were not truthful when questioned by the investigating officer (IO).  Specifically regarding your statement that you had “no idea” a lieutenant (LT) under your supervision was corresponding with your wife by passing messages between you and your estranged wife, whom you were prohibited from communicating with, directly or through third party, due to a military protective order (MPO) in place at that time.  The CI also found that you had deceived the LT by not disclosing that there was a MPO in place.  Additionally, the CI found that, on 12 December 2017, you blatantly disregarded directions received from your executive officer (XO) that the command would not be able to support a waiver request to stay or 
temporarily delay proceedings in a civil lawsuit.  Consequently, on 16 January 2018, you were issued a non-punitive letter of caution (NPLOC). 
 
On 20 February 2018, your commanding officer (CO) notified you of his intent to impose non-judicial punishment (NJP) for violation of the Uniform Code of Military Justice (UCMJ), Article 107 (false official statement) and Article 133 (conduct unbecoming).  On 22 February 2018, after consulting with both military and civilian counsel, you refused NJP. 
 
On 5 March 2018, your CO submitted a ROM requesting your detachment for cause, and also that you be required to show cause before a Board of Inquiry (BOI) for retention in the Navy.  On 15 March 2018, you responded to the ROM, alleging that your NPLOC was issued without a full investigation or verification of facts, that the accusations made against you were false, and that your ability to do your job was neither compromised nor detracted from the command mission.  You also stated that your DFC is not appropriate for or instead of disciplinary action, that you were not afforded an opportunity to respond to correct the alleged problem, and that there was no basis to remove you. 
 
On 21 March 2019, your CO unfavorably endorsed and forwarded your response to the ROM, noting that the factual basis of your NPLOC was clear and unrefuted (the Board noted that you mistakenly identified this as a second ROM).  Your CO explained that you attempted to get a false assertion from him that you would not be available in civil court due to operational necessity, and that after he denied your request, you then went to your supervisor and deceptively got a statement excusing your civil court appearance, without letting your supervisor know that your earlier request had been denied.  You submitted additional responses and evidence on 28 and 29 March 2018, in which you disagreed with your command’s accusation of misconduct and the request for your DFC. 
 
Despite your objections, on 28 July 2018, the Deputy Chief of Naval Personnel (PERS-834) approved your DFC due to misconduct.  On 31 October 2018, you requested that your DFC be set aside, noting that there was no reason to ruin your career just because you did not remember every detail from 2011.  You reiterated your assertion that the CI failed to accurately capture true facts, and you furnished e-mails and a polygraph report in support of your request.  However, on 7 December 2018, PERS-834 denied your request to set aside your DFC. 
 
You were issued a Periodic/Regular fitness report for the reporting period 1 November 2017 to 31 October 2018 with a promotion recommendation of “significant problems,” and a “below standards” military bearing/character trait.  Regarding your performance, your reporting senior (RS), who was also your CO, commented, in part, that you “failed to adhere to the Navy’s Core Value of Honor.  Specifically, [you were] blatantly untruthful; once during a command investigation where [you] made a false statement and again when [you] manipulated the truth to circumvent [your CO’s] authority.”  Your RS also noted that your DFC was approved by the Deputy Chief of Naval Personnel.  You acknowledged (signed) the report and indicated that you intended to submit a statement.  The Board noted that your statement was rejected by the Navy Personnel Command (PERS-32) because, in violation of BUPERS Instruction 1610.10D, it was intemperate in tone, it contained enclosures, and it made accusations and impugned the motives of your RS or others. 
On 2 August 2018, you were directed to show cause before a BOI.  The BOI convened on 2 November 2018 and 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 and Article 133, and that the preponderance of the evidence did not support your separation based on your substandard performance–failure to conform to prescribed standards of military deportment.  The BOI, therefore, recommended that you be retained in the naval service. 
 
On 9 November 2018, PERS-834 notified you that you were retained in naval service, and that the ROM would be filed into your OMPF.  Pursuant to MILPERSMAN 1070-170, you were afforded an opportunity to submit a statement in response to the adverse material inserted into your OMPF. 
 
With regard to your contention that the ROM was based on a flawed and incomplete CI, the Board noted that a CI functions as a tool to gather, analyze, and record relevant information about an incident or event of primary interest to the command.  Your CO reviewed the CI report and, based on a preponderance of the evidence, issued you a NPLOC, and he notified you of his intent to impose NJP for violation of the UCMJ, Articles 107 and 133.  The Board noted that, pursuant to MILPERSMAN 1611-101, the ROM was forwarded for review and action to PERS-834, and, after a thorough review of the evidence presented, both yours and your command’s, it was determined that you be required to show cause before a BOI.  The Board thus concluded that you failed to substantiate that your ROM was based on a flawed and incomplete investigation.  The Board determined that, even assuming arguendo—but not conceding—that the CI was flawed, as you contend, such error is harmless.  Here, the Board determined that the command would have proceeded with the Report of Misconduct and the request for DFC, pursuant to SECNAV Instruction 1920.6C, due, in part, to your misconduct.  The Board concluded that it was 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 ROM, for consideration by your chain of command and the PERS-834. 
 
The Board considered your contention that the decision to DFC was made prior to the findings of the BOI.  The Board, again, determined that it was 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 ROM, for consideration by your chain of command and the PERS-834. 
 
The Board also considered your contentions that, despite the BOI’s determination that the entire factual basis of your ROM and your DFC was purportedly unfounded, your CO issued you a referred fitness report for the exact same unfounded misconduct, that the matter was unresolved at the time your fitness report was filed, that it is a blatant and deliberate abuse of discretion, and that it is unjust for your RS to intentionally disparage you and your integrity when you have clearly been vindicated. 
 
The Board noted that 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 is an administrative separation process that does not give the BOI authority to determine guilt or innocence.  The Board also noted that your misconduct had been established through reliable evidence to your RS’s satisfaction, that it is conceivable and 
permissible that your CO and your BOI arrive at different findings, and that it was within your CO’s discretionary authority to issue your adverse fitness report.  The Board thus concluded that your RS’s comments on misconduct were not invalidated by the findings of a BOI. 
 
With regard to your contention that removing comments from your response to your fitness report would nullify the explanation of the fitness report and entirely prevent you from responding to it, the Board noted that pursuant to BUPERS Instruction 1610.10D, it is your right and responsibility to submit a statement, providing it is written in accordance with the policy, and providing it is submitted within two years after the report ending date.  The Board noted that you have not been prevented from submitting a statement in response to your contested fitness report, and determined that your fitness report was reviewed by the Navy Personnel Command (PERS-32) and found to be a valid report, and that, if you chose to submit a written rebuttal for inclusion in your OMPF, it must be in compliance with the guidance provided in BUPERS Instruction 1610.10D. 
 
Accordingly, under the totality of the circumstances, the Board concluded that you failed to provide substantial evidence demonstrating the existence of a probable material error or injustice warranting your requested relief. 
 
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. 
 
 Sincerely, 
 6/25/2020