Docket No: 4990-19 
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 18 September 2019 advisory opinion (AO) furnished by Navy Personnel Command (NPC), Officer of Legal Counsel (PERS-00J) and your response. 

The Board carefully considered your request to remove your Report and Disposition of Offenses documenting your 27 June 2017 non-judicial punishment (NJP) and all related derogatory information.  You also request advancement to pay grade E-7.  The Board considered your contentions that your Commanding Officer (CO) abused his discretion due to legal and factual insufficiency of the evidence and the CO’s finding of guilty at NJP was arbitrary, capricious, contrary to law and unsupported by substantial evidence.  Specifically, according to Article 120, Uniform Code of Military Justice (UCMJ), the CO must find that you touched the individual with unlawful force with an intent to abuse, humiliate, harass, or degrade any person or to arouse or gratify the sexual desire of any person.  You claim that you patted the front side of the victim’s shoulder.  You also contend that the derogatory material is negatively affecting your career.  You claim that your advancement exams make you eligible for the Chief selection board and you were not selected because of the unjust NJP.  Lastly, you contend that your administrative separation board unanimously determined that there was no misconduct. 

The Board, however, substantially concurred with AO that sufficient evidence existed for your commanding officer (CO) to reasonably conclude that your actions violated Article 120, UCMJ and you are not entitled to advancement to E-7.  The Board noted that your CO found you guilty at NJP for violation of Article 120, UCMJ, for grabbing the chest area of the victim, with an intent to humiliate, you were properly notified of your Article 31 UCMJ rights pursuant to the Manual for Courts-Martial (MCM) vessel exception, you were afforded the opportunity to consult with a military lawyer, and afforded your right to appeal the NJP.  The Board also noted that the Commander, Expeditionary Strike Group TWO considered and denied your appeal. 

Concerning your contention that there was not a sexual element to your touch, the Board determined that your contention did not address the element involving your intent to abuse, humiliate or degrade. . . .” In this regard, the Board determined that based upon the preponderance of evidence (grabbing the victim’s pectoral, your statement “not yet,” your previous comments “I can’t see you wearing makeup” and “Does this make your wife a lesbian,” 
the Naval Criminal Investigative Service investigation and witness statements) your CO concluded that you intended to humiliate the victim.  The Board also determined that your CO acted within his discretionary authority.  The Board found no evidence that your CO violated regulations in finding you guilty of violating Article 120, UCMJ. 

Concerning your contentions regarding the Prosecutorial Merit memo and your administrative separation board’s finding of no misconduct, theBoard determined that the Prosecutorial Merit memo only serves to advise the CO if a crime can be successfully prosecuted at court-martial.  The memo did not exonerate you by recommending against trial by court-martial.  The Board also determined that your administrative separation board finding does not nullify your NJP.  In this regard, the Board noted that your administrative separation board found that you did not meet the basis for separation.  Moreover, an administrative separation board is an administrative process convened to determine your suitability for retention in the military, they are not punitive in nature, they are separate and distinct from NJP, and thus the processes are not binding on each other. 

Concerning your request for advancement to pay grade E-7, the Board determined that you are not entitled to advancement based upon your exam scores alone, you must also be selected by a promotion selection board.  Further, the Board concurred with the AO’s observation that your record contains two Physical Fitness Assessment (PFA) failures, and thus determined that you would have likely failed selection due to your PFA failures. 

Concerning your contention that your CO abused his discretion due to legal and factual insufficiency of the evidence and his finding of guilty was arbitrary, capricious, contrary to law and unsupported by substantial evidence, the Board determined that your CO’s finding of guilt was just and within his discretionary authority pursuant to Article 15, the Manual for Courts-Marital.  TheBoard also determined that your CO’s decision was not unsupported, arbitrary, capricious, or contrary to law.  The Board relies on a presumption of regularity to support the official actions of public officers and, in the absence of substantial evidence to the contrary, will presume that they have properly discharged their official duties.  The Board thus concluded that there is no 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 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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