Docket No: 3907-19 
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. 

A three-member panel of the Board, sitting in executive session, considered your application on 2 June 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 6 February 2020 advisory opinion (AO) furnished by the Office of Legal Counsel (PERS-00J), and the enclosed AO furnished by the Navy Personnel Command (PERS-80), as well as your 28 February 2020 rebuttal. 

The Board carefully considered your request to review complaint findings related to the prohibition of retaliatory personnel actions, and to promote you to lieutenant commander/O4.  The Board considered your contentions that your command, in an act of reprisal, intentionally and wrongfully denied you time to recover from limited duty during the period of time that you were in-zone for promotion, and this information was not available to the Physical Evaluation Board (PEB).  The Board also considered your rebuttal statement regarding your assertion that you served the hardest assignments, your allegations of discrimination and equal opportunity, and that you had to do a “ditty” move across country on three separate occassions to make your assignment work. 
The Office of Legal Counsel AO noted that your petition to the Board lists a series of demands mostly focusing on your prior command, alleged injustices, and demanding investigations and inquiries into how the command treated you.  The Board noted that the Bureau of Medicine and Surgery’s Office of the Medical Inspector General, and the Commanding Officer, each conducted an inquiry into your various allegations.  Ultimately, there were no findings of fraud or abuse or unethical behavior, and it was determined that the Commander, Navy Medicine West’s actions were in substantial compliance with governing directives and were not an abuse of discretion.  Additionally, the Board noted that it is not an investigative body.  Its function is to consider applications properly before it for the purpose or determining the existence of error or injustice in the naval records of current and former members of the Navy and Marine Corps, to make recommendations to the Secretary or to take corrective action on the Secretary’s behalf when authorized.  The AO further noted, and the Board concurred, that the requested relief, even if potentially actionable by the Board does not for the most part include any actions or potential relief because you do not allege an error or injustice in your record to be corrected or removed, with the exception of your request to be promoted. 

The Office of Legal Counsel AO noted that you failed to provide verification that you were in-zone or above the zone for an O-4 promotion selection board in Fiscal Year 2017 or Fiscal Year 2018, and you also have not demonstrated that if you were eligible for either promotion selection board, that there was an error or injustice which impacted your consideration by the board.  Next, the Board substantially concurred with the PERS-80 AO that, although you did not specifically request a special selection board, you provided no further explanation or justification for such a request. Lastly, the Board determined that promotion to the rank of O-4 automatically is not legally supportable. 

The Board determined that you have not met your burden to overcome the presumption of regularity attached to the official actions of the Navy.  The Board thus concluded that there is no probable material error or injustice warranting the 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 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. 

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