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 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 28 July 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 11 February 2020 advisory opinion (AO) furnished by the Office of legal Counsel (BUPERS 00J), as well as your rebuttal. The Board noted that an Inspector General (IG) complaint from an anonymous e-mail alleged in April 2017, that you failed the Body Composition Assessment (BCA) of Cycle 1 of the 2017 Physical Fitness Assessment (PFA) conducted at the Navy Region () onboard Naval Base (), . The complainant further alleged after failing the BCA, you refused to sign the documents listing your BCA scores and later requested two Assistant Command Fitness Leaders (ACFLs) to re-measure you, and ordered the ACFLs to pass you and hinted at making the ACFL’s careers difficult if they did not pass you. The IG investigated the allegation that you improperly used your position as the Commanding Officer to coerce subordinate personnel to improperly measure you for your BCA on 10 April 2017 as part of your PFA in violation of government ethics standards in 5 C.F.R. 2635.702a. On 27 June 2017, the NRSW IG notified you in its Report of Instigation (ROI) that the allegation was substantiated. You were provided with a draft ROI for review, comments, additional information, or necessary contest for consideration in the final evaluation of the investigation. On 17 August 2017, you were charged with violation of the Uniform Code of Military Justice (UCMJ) Article 92 (Failure to obey lawful order or regulation) and Article 107 (False official statement). You were advised of your rights and elected to consult with a civilian lawyer. You later refused nonjudicial punishment (NJP) and demanded trial by court-martial. Your chain of command concurred with the IG findings and recommended your Detachment for Cause (DFC). Additionally, the Commander, recommended that you be required to show cause for retention in the Naval service before a Board of Inquiry (BOI). On 21 September 2017, you responded to the DFC recommendation, which was forwarded to the Commander, () for decision. On 11 January 2018, the (PERS-834) provided you with Notification of Administrative Show Cause Proceedings. Your DFC was also approved, and you were subsequently issued a Detachment of Individual/Regular fitness report for the reporting period 1 May 2017 to 28 February 2018. A BOI convened on 5 April 2018 and determine that the preponderance of evidence did not support either misconduct basis for separation. The BOI, however, unanimously determined that the evidence did support your substandard performance - failure to conform to prescribed standards of military deportment. Nevertheless, the BOI did not recommend you for separation, despite the evidence of your substandard performance. On 20 May 2019, the Commanding Officer, , who initiated the DFC request, and who was also your reporting senior (RS) of the contested Detachment of Individual/Regular fitness report submitted a supplemental fitness report for inclusion in your official military personnel file (OMPF) due to “reexamination of previous information and new discoveries…” and a “sincere belief the fitness report . . . did not accurately reflect [your] performance.” The supplemental fitness report was accepted by the (PERS-32) and inserted in your OMPF. The Board carefully considered your requests as follows: • Remove all Field Code 17 and adverse documentation from OMPF dating from 31 August 2017 through 11 May 2018, specifically, but not limited to: o Deputy Chief of () letter of 29 December 2017 - DFC, and associated documents. o Any documents associated with or in response to the Administrative Show Cause proceedings, to include results of the 5 April 2018 BOI. o Your fitness report for the reporting period 1 May 2017 to 28 February 2018. • Designate the letter-supplement and supplemental fitness report (signed 26 June 2019) to become the fitness report of record for the reporting period 1 May 2017 to 28 February 2018, and remove the fitness report originally submitted for this reporting period. • Your record to reflect Joint Professional Military Education (JPME) completion in November 2018 based on successful completion in March 2019. • The Navy () make effective in your record the 3130R and 3150R subspecialty codes as of December 2018. • The Navy () grant credit for Commander Command/Milestone (RB5 AQD) dated back to April/October 2018 (the earliest/latest date you would be eligible to leave command based on policy and previous O-5 command experience). • Convene a special selection board (SSB) to the grade of captain. The Board considered your contentions that your DFC and BOI were based on defective logic and conclusions provided in a IG Report, which led the Commanding Officer, and Commander, Navy Region () to take administrative actions having a disproportionate and negative impact on your career. You assert that you were denied due process by your command not using the military justice system in the form of a court-martial. The Board considered your contention that the effort that you spent refuting accusations limited your ability to include subspecialty codes in your record because the DFC and BOI prevented you from completing command between April and October 2018 when you likely would have been enrolled in JPME Phase II. You assert that your record is unjust because the information used to support the DFC and BOI was not complete nor did the evidence meet the preponderance standard used to make a determination. You also assert that you were on track to receive achievements, if not for the DFC and BOI, and had you received those achievements as planned, you would have been highly competitive for the promotion. The Board also considered your additional contentions noted in your rebuttal statement. Specifically, that the evidence highlighted from your case provides the meaningful information required to challenge the presumption of regularity, that you had no reason to do what you were accused of doing, and that the government did not properly discharge its duties regarding objective evidentiary documentation, the omission of relevant information, and the unsupported analysis of documentation by the government’s investigators. You argue that the investigators failed to provide all relevant evidence further up the chain of command to those deciding the outcome of your case, depriving your chain of command of firsthand information. You contend that the allegations made by YN1 in her testimony were an affront to you and your character, and were left unchallenged and uncorroborated by the government, putting you at a severe disadvantage. You argue that the government investigators did not change their position when presented with new and compelling evidence and that they did not allow you a presumption of innocence. The Board considered your contention that the IG investigators did not have the required expertise, that they relied on their own unqualified understanding in conducting their analysis, and made conclusions they were not qualified to make. You argue that, instead of the investigators providing “clear and convincing” evidence, the standard used was simply a preponderance of the evidence, and it is patently unfair that the standard is higher to demonstrate the government acted improperly than it was to strip you of everything you had worked so hard for. Lastly, the Board considered your assertion that your former commanding officer, who recommended the DFC, reviewed all the evidence in advance of your petition, and concluded that he would have made a different choice given all the information. The Board noted that the gravamen of your appeal was that the IG investigation was flawed, and if not for the purportedly flawed investigation, no administrative actions would have been taken against you, and your career would not have suffered because of it. The Board, however, determined that your evidence was insufficient to demonstrate the existence of probable material error or injustice warranting the requested corrective action. The Board substantially concurred with the AO that you did not furnish substantial evidence that the government’s actions were not proper and just and/or the government failed to follow proper procedures. The Board determined that, even assuming arguendo—but not conceding—that the IG investigation was flawed, this contention does not allege an error or injustice in your OMPF. Additionally, the Board noted that you submitted a detailed response to the IG draft report, and when charged with violations of the UCMJ, you exercised your right to demand trial by court martial in lieu of NJP. Here, refusal of NJP did not preclude your commanding officer from taking administrative action against you. Accordingly, your commanding officer chose not to refer charges against you for trial by court martial, but instead, recommended that you be detached for cause due to your misconduct and a loss of trust and confidence in your ability to command, as was his discretionary authority to do so. The Board thus concluded that you were not denied your due process rights. Likewise, the Board noted that you were not denied your due process rights throughout the DFC process or the BOI process, and your evidence did not prove otherwise. The Board noted your contention that you likely would have been enrolled in JPME Phase II, and that you would have received achievements that would have made you highly competitive for the promotion. The Board determined that these contentions are merely speculation and immaterial because it does not allege an error or injustice in your record to be corrected or removed. Additionally, the Board noted that the correction to your fitness report was done in accordance with the applicable policy, and removal of the original report is not warranted. The Board carefully considered the favorable endorsement from your former commanding officer. Although your former commanding officer stated that he would not have removed you from command, the fact of the matter is that his DFC recommendation was reviewed by your entire chain of command, along with your rebuttal to the recommendation, and that it was ultimately approved by PERS-834. The Board thus concluded that the DFC was not in error or unjust. The Board substantially concurred with the AO that the fact that the BOI did not find that the evidence supported the misconduct bases for separation does not automatically trigger removal of all adverse information related to the misconduct. Specifically, the BOI findings are not binding upon other administrative processes. The BOI members’ findings that the evidence did not support either misconduct basis does not affect the approved DFC and/or the IG investigation’s substantiated findings. The AO determined, and the Board concurred, that other processes including those of community management, fitness reporting and promotions, are not bound by BOI findings, and vice versa. The Board further noted that, pursuant to MILPERSMAN 1070-020 and BUPERS Instruction 1070.27C, the OMPF contains documents that reflect on the character, performance, professional qualifications, and fitness of the member. The Board also noted that the request for your DFC was submitted to the appropriate action office (PERS-834) for review before it was filed in your OMPF. 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,