Docket No: 4441-19 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 16 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 15 November 2019 advisory opinion (AO) furnished by the Navy Personnel Command (PERS-32), and the 21 February 2020 AO furnished by the Navy Personnel Command (PERS-00J). Although you were afforded an opportunity to submit a response, you did not do so. 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. The Board carefully considered your request to remove your evaluation and counseling record for the reporting period 23 December 2016 to 5 May 2017. The Board considered your contention that the Military Protective Order (MPO) issued to you was based on false testimony and statements. The Board also considered your assertion that the MPO denied you access to your biological children as you had no means of contacting them. You explained that, while serving your restriction time, your middle aged daughter was bitten by [your wife’s] boyfriend’s dog, which required her to be evaluated by a plastic surgeon. You allege that your Commanding Officer (CO) acted improperly and contributed to the child neglect and/or child abuse because you had informed your chain of command of your wife’s affair and the confirmation your children were being subjected to a convicted felon in your home by a licensed private investigator. You also contend that, four days after you received nonjudicial punishment (NJP), your CO was relieved as Commanding Officer due to loss of confidence. The Board noted that the MPO specifically allowed you to initiate contact or communication with the protected person identified in the MPO, namely your spouse, in accordance with the State of civilian protective order. The MPO was for a defined period with an automatic expiration at any time beforehand once you resolved the matter in the civilian court. You had the right to litigate this matter in the civilian court and your Command indicated, quite appropriately, that it would honor any decision rendered in that body. The Board substantially concurred with the PERS-32 AO and determined that the report is a valid report, properly submitted by your reporting senior (RS) and accepted by PERS-32. PERS­32 noted that BUPERS Instruction 1610.10D allows RSs to document concluded judicial or NJP cases where there has been a finding of guilty or awarding of punishment. In your case, you received NJP at Captain’s Mast on 4 May 2017 resulting in the findings of guilty for violation of the Uniform Code of Military Justice, Article 92 (failure to obey an order or regulation). As a result, your RS issued the adverse special evaluation report. The Board also substantially concurred with the PERS-00J AO and determined that you have not substantiated an error or injustice in your record warranting relief. The AO noted that you provided evidence of a very contentious civilian legal situation and that you do not dispute that a preliminary protective order was issued by the civilian authorities. While it may be true that your spouse presented false testimony in order to obtain the civilian protective order, there is nothing inappropriate, and in fact, it is quite appropriate, for a CO to issue a MPO in concert with a civilian protective order and certainly when the service member resides in a different state than the alleged victim. As noted in 32 C.F.R. § 635.19, “A DD Form 2873, Military Protective Order (MPO) is a written lawful order issued by a commander that orders a Soldier to avoid contact with those persons identified in the order. MPOs may be used to facilitate a ‘cooling off’ period following domestic violence and sexual assault incidents, to include incidents involving children.” PERS-00J also noted that you do not discuss or explain how you violated the MPO, nor do you dispute that you did, in fact, violate the MPO. Rather, you cite only that the MPO was wrongfully issued and that your special evaluation should be essentially expunged from you record because you were seeking to gain information about the well-being of your children when you apparently violated the terms of the MPO. PERS-00J thus determined, and the Board concurred, that you have not provided any evidence to meet your burden to overcome the presumption of regularity attached to the official actions of the Navy --either in the imposition of NJP or in the proper documentation of the NJP pursuant to MILPERSMAN 1616-040. Moreover, you admit in your statement that you did not appeal the NJP, and you also elected not to submit a statement when you signed your contested evaluation on 1 July 2017. The Board determined that your Command therefore followed the regulation pursuant to MILPERSMAN 1616-040 and that you elected not to avail yourself to an additional opportunity to dispute the allegations against you. 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.