Dear : 
 
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 18 August 2019.  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 13 February 2020 advisory opinion (AO) furnished by the Office of legal Counsel (BUPERS 00J), as well as your rebuttal. 
 
The Board noted that, according to a 1 March 2017 preliminary inquiry (PI), you conducted department quarters with six of your Sailors.  You covered  administrative tasking then discussed the operational requirements that required the squadron to work on Presidents Day, normally a day off.  Lastly, you related a personal story from the previous weekend.  Specifically, you, your wife, and a group of friends attended a comedy show at the  comedy club  .  All four of the comedians, as well as the vast majority of the audience, were black.  You were purportedly surprised at the frequency and ease that racial epithets were used by all four comedians.  Attempting to communicate your discomfort with the term and the unacceptability of the use of racial epithets to the department, you stated that it “would not be ok for me to come in here and say what up my [racial epithet]” to an office consisting of “a white chick and bunch of brown people.”  The Board also noted that the accounts of the incident from the members of the department differ slightly with some people remembering you saying “it would be acceptable” or “would it be funny if” before your statement. 
 
Consequently, on 22 March 2017, you received NJP for violation of Article 92 (failure to obey order or regulation) and Article 133 (conduct unbecoming).  The Board noted that the specifics as to what was said, the circumstances and the intent all vary from witness to witness.  However, there is general agreement that the events took place during quarters, at some point during which you uttered certain comments and words which had racial undertones.  On 24 March 2017, you were issued a PLOR.  Your NJP was also documented in your fitness report and counseling record for the reporting period 31 January 2017 to 13 July 2017.  
 
On 10 April 2017, you appealed the NJP.  Your commanding officer provided a comprehensive explanation for recommendation to deny your NJP appeal and forwarded it to the Commander, , who ultimately denied your NJP appeal. 
 
On 23 October 2017, your commanding officer submitted a Report of Misconduct (ROM), and recommended no further administrative action be taken against you.  Your commanding officer did not request you be detached for cause (DFC) or that you be required to show cause before a Board of Inquiry (BOI).  Your response to the ROM, and your chain of command’s recommendation was forwarded to the Commander, Navy Personnel Command (PERS-834).  PERS-834, however, reviewed your case and determined there was sufficient evidence of record to require you to show cause for retention in the naval service based on your misconduct and substandard performance of duty.    
 
The BOI unanimously determined that the preponderance of evidence did not support the specified allegations of substandard performance and that the preponderance of evidence did not support the specified allegations of misconduct.  Based upon these findings, the BOI stated that none of the reasons for separation were supported by sufficient evidence; and therefore, did not warrant separation for cause.  On 15 August 2017, the CNPC notified you of your retention in the Navy.   
 
The adverse materials documenting your NJP and BOI were subsequently inserted into your  OMPF. 
 
The Board carefully considered your requests as follows: 
 
• Removal of your 22 March 2017 record of nonjudicial punishment (NJP). 
 
• Removal of your 24 March 2017 Punitive Letter of Reprimand (PLOR).  

 • Removal of your 23 October 2017 Report of Nonjudicial Punishment  
 
• Removal of your Fitness Report & Counseling Record for the reporting period of 31 January 2017 to 13 July 2017 
 
• Removal of all documents related to the BOI proceedings held on 14 August 2018, to include all attendant documents thereto; and 
 
• Restore all pay, allowances, entitlements, rights, and privileges, affected by your 22 March 2017 NJP. 
 
The Board carefully considered your contentions as follows: 
 
Your conduct did not constitute a violation of SECNAV Instruction 5350.16A, as alleged in the specification of Charge I.  

• The punitive criteria for a violation of SECNAV Instruction 5350.16A is the commission of an act that constitutes unlawful discrimination against another person based on race, religion, color, gender or national origin.  The remarks in question, were not used in a demeaning, degrading, malicious way, or directed at any group or individual, and you certainly did not engage in any unlawful discrimination against another person based on race, religion, color, gender or national origin. 
 
Regarding the specification of Charge II, consideration must be given as to the context of the comments in question and the scenario in which they were made.   

• Your only intent was to use your personal experience as a training evolution.  The comments were not used in a demeaning, degrading, malicious way, or directed at any group or individual.  Your actions did not in any respect rise to the level of conduct unbecoming an officer and gentleman. 
 
It is fundamentally unfair to have a NJP determination that you committed two offenses arising from the same acts. 

• The violation of the UCMJ, Article 133, conduct unbecoming an officer, was in reliance upon the charged violation of the UCMJ, Article 92, violation of a lawful general regulation. Article 133 includes the additional element of conduct unbecoming an officer.  That clearly makes the Article 92 charge a lesser included offense of the greater conduct unbecoming an officer charge.  This issue has been well settled by the Court of Appeals for the Armed Forces in the case of U.S. V. Cherukuri, 53 MJ 68, 72 (CAAF 2000). Accordingly, pursuant to that authority, the charged violation of Article 92 should be disregarded. 
 
At no time did you intend to violate the Navy’s policy on Equal Opportunity or to in any manner offend any member of the command. 

• The intent of the conversation in question was to fully support the Navy policy. You were engaging in a discussion as a training evolution with the Administrative Department concerning a personal experience that he had encountered in a public local community setting that was very disturbing to you due to the repeated use of a racial epithet and other disparaging remarks.  The purpose and intent for engaging in the discussion with your Sailors was to firmly establish, in what was effectively a training environment, that the use of the racial epithet and other disparaging remarks is clearly unacceptable in the community and command environment.  You were hoping to promote introspective reflection on the subject by sharing your personal perspective to create a teachable moment.  The intent was to build trust and forge a deeper connection with your Sailors. 
 
• In retrospect, as you have strenuously tried to convey at every opportunity given you, you acknowledged the specific remarks should have been avoided in your discussion; and your discussion with your department personnel was well intended.  You realized that you could have carried on the discussion without the specific use of the language in question.  The specific remarks were not thought out in advance, which you recognized and accepted was a momentary judgment lapse on your behalf.  The specific comments were uttered in the waning moments of a conversation that spoke directly to your disappointment and shock with the rampant use of that word.  The comments in question were prefaced by a lengthy discussion in which you stated multiple times, that the use of the word is not acceptable in any of your social circles, your family does not use that word, and you do not use that word.  The statements in question were also prefaced and followed with, “It wouldn’t be appropriate for me to use that word in any way” or words to that effect; you then went on to say, “I can’t say...” the second statement.  Your remarks were not used in a demeaning, degrading, malicious way, or directed at any group or individual. 
 
• On 21 February 2017, you apologized to the entire department, acknowledged your mistake, showed remorse, and explained your personal views that aligned with Navy policy.  On 6 March 2017, you remediated the incident through the informal resolution process with the only Sailor to engage in the resolution proceedings.  You also asked the command to implore other Sailors to do the same, but none had informal complaints.  You made attempts to seek opportunities to continue positive communications with your Sailors.  The use of the Informal Resolution Process (IRS) as prescribed by SECNAV Instruction 5350.16A, was the appropriate manner to address the scenario and it is clear that the IRS process was effective in disposition of the Equal Opportunity informal complaint made by the one Sailor in question. 
 
The lack of a thorough command investigation, and no witnesses at Mast, placed you in a situation of not being able to fully provide a defense before your Commanding Officer. 

• The NJP proceedings were followed by a preliminary investigation only.  Your statements were the last collected by the Investigating Officer and no attempt was made for additional questioning of witnesses.  The witness statements did not address the nature or intent of the discussion.  None of the witnesses were questioned at Mast. You requested five Sailors from the command to appear as witnesses at the Mast proceedings - all chose not to appear.  
 
The Navy Personnel Command directed the convening of a BOI despite the recommendation of the Commanding Officer, that you not be required to show cause. 
 
• The board found by a vote of 3 to 0 that the evidence did not support misconduct nor substandard performance of duties.  

• The board was not convinced by a preponderance of the evidence that the misconduct had occurred.  

• The Board also found, by a vote of 3 to 0, upon a preponderance of the evidence, your performance of duty was not substandard due to a failure to conform to prescribed standards of military deportment. 
 
Your Commander, as successor in command, fully supports you in your effort to advance in your naval career, as reflected in his 31 October 2018 Fitness Report and his character letter of 5 March 2019 which recommends approval of your request.  

• On 30 November 2018, [Commander] (verbally) denied your  request to set aside the NNJP. In his 5 March 2019 letter, he stated to the effect that he was unable to set aside the punishment due to the fact that more than four months had passed since imposition of the NJP.  Upon review of MILPERSMAN 5812-010, a successor in command can set aside the NJP and “should ordinarily be exercised only within a reasonable time after the punishment has been executed, which in the absence of unusual circumstances, 4 months is a reasonable time.”  [Commander] further states in his letter of 5 March 2019 that “(he) wholeheartedly agree(s) with the BOI findings” and believes that you committed no misconduct and no substandard of performance of your duties.  You submit that your commander did in fact have the ability to set aside the NJP, by reason of fact that the time that elapsed between the NJP and request for set aside, a total of 18 months, was reasonable under the circumstances in that the you had to present your case before a BOI in order to establish that you did not commit misconduct or substandard performance of duty. 
 
The circumstances of the case warranted, at worst, a non-punitive letter of caution and the consequences are unjust to the circumstances of the offenses.  
 
• A letter of caution would have certainly served the purpose of having you acknowledge the gravity of your actions , and ensured deterrence of any similar conduct.   

• Furthermore, a letter of caution would not have hindered advancement of your naval career.  

• The measures taken have created adverse administrative actions that severely limit your promotion ability and future growth as a Naval Officer.  

• You fully recognize the perspective of your commanding officer to enforce Navy policy; however, the conduct, taken in proper context, did not constitute a violation of Article 92, or Article 133, UCMJ, as proven by the BOI findings. 

• The completion of the informal resolution process, the fact that your true purpose and intention for the conversation was to support Navy policy, and through your exemplary Naval service, provide understanding that this situation should not have resulted in NJP and imposition of PLOR. 

Consideration should also be given to your over 13 years of honorable and faithful service to the Navy, and to our country. 
 
• It is evident that you have always been a faithful and dedicated steward of the naval service.  As a Naval officer, you have dedicated yourself to the lives of the men and women who serve in our armed forces, and their families. 
 
Your operational chain of command fully support you. 

• Following the incident, two successive commanding officers at, with full support of the Commodore and Deputy Commodore, selected you for assignment as Detachment OIC four times over.  The BOI was postponed by the direct request of the commanding officer, in order to allow you to serve as officer in charge (OIC) for an operational deployment.   

The Board recognized that, from your perspective, you were trying to convey to your Sailors how disturbing certain language could be.  The Board, however concurred with the AO.  In this regard, the AO noted that, according to the PI, there is no dispute that you made statements that carried racially charged words or phrases, and from the perspective of some of those in attendance, you used racist and cutting language.   
 
The Board also concurred with the AO that you failed to state a valid or compelling case for removing the NJP and related material from your record.  The Board noted that you took numerous steps to make amends and to demonstrate your continued worth to the Navy.   
However, your notion is that your audience should not have attributed the meaning and intent that they did to the words you spoke, and because you did not mean to act inappropriately it should not be held against you.   
 
The Board also agreed with the AO that the decision as to what occurred and the determination of what adverse impact it created at the command was the responsibility of your commanding officer.  The Board determined that your commanding officer, looking at the evidence, contemporaneous with events made his decision.  Arguably this officer, at that time was in the best position to gauge not only what really occurred, but the impact of your words to the command’s morale, for example, if the Navy’s equal opportunity was breached and a hostile workplace was created or perpetuated. 
 
The Board noted that you had the opportunity to refuse NJP, but did not choose to do so.  Although you appealed your NJP, competent authority after consideration of the facts and circumstances, denied that appeal. 
  
With regard to your contention that a BOI found no grounds of misconduct or substandard performance of duties, the Board noted that, while your supporting brief cites case law for certain propositions, it does not cite to any legal precedent or accepted legal theory in its justification for removing the NJP from your record based upon the BOI findings.  The Board also noted that, although your BOI did not find sufficient evidence to warrant your separation from the Navy, that does not impact the validity of the NJP findings, and that it is conceivable and permissible that the two processes with separate considerations and purposes may arrive at different findings.  The Board also noted that the imposition of NJP and the denial of your appeal were within your chain of command’s discretionary authority, and concluded that you did not furnish sufficient evidence demonstrating 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 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,