Dear : This letter responds to your application for correction of your naval record under Title 10, United States Code, Section 1552. The Board for Correction of Naval Records (Board) denied your initial application on 16 September 2015. On 4 March 2019, the United States District Court for the remanded your case to the Board, stayed the proceedings in your case, and directed the Board to: (1) consider any matters raised in your submission to the Board, to be submitted within 120 days of the court’s order; (2) address the allegations of procedural improprieties in your nonjudicial punishment (NJP) and the lawfulness of the evidence considered at your NJP hearing (“Admiral’s Mast”); and (3) in addressing the allegations, seek an advisory opinion from the Criminal Law Division (Code 20), Office of the Judge Advocate General (OJAG). The Board reconsidered your case in accordance with the court’s order and procedures that conform to Lipsman v. Secretary of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004). After careful consideration of the entire record, the Board found the evidence did not establish probable material error or injustice. Thus, your application is denied. Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel would not materially add to their understanding of the issues involved. The Board therefore determined that a personal appearance was unnecessary and considered your case based on the evidence of record. A three-member panel, sitting in executive session, considered your application on 17 December 2019. The names and votes of the panel members will be provided upon request. The Board reviewed your allegations of error and injustice under applicable regulations and procedures. It considered your application, including all material submitted in support thereof, relevant portions of your naval record, and applicable statutes, regulations, and policies. The Board also considered the enclosed 2 August 2019 advisory opinion (AO) furnished by the Deputy Director, Code 20, as well as your 1 September 2019 response. Background A 25 January 2012 report of preliminary inquiry (PI) into allegations of your misconduct determined that, during the period from November 2011 to January 2012, you (a married man) and the wife (“wife”) of an enlisted member of your command (“Sailor”) engaged in inappropriate and flirtatious behavior and e-mail/Facebook (FB) message exchanges while working in close proximity at the same command. Sailor discovered the inappropriate relationship by allegedly surreptitiously gaining access to his wife’s FB account without her consent, and he presented evidence of the inappropriate relationship—printouts of his wife’s messages with you—to his command. Consequently, you were removed from your office, reassigned outside the command, and ordered not to have contact or communication with Wife. On 16 February 2012, you accepted NJP for violation of Article 133 (conduct unbecoming an officer and gentleman) and Article 134 (general disorder) of the Uniform Code of Military Justice (UCMJ). The , , found that you, a married man, engaged in an unduly familiar relationship—to include touching and kissing—with the wife of a fellow Sailor. The punishment imposed was a punitive letter of reprimand (PLOR) and forfeiture of $1000.00 pay per month for two months. You signed your Report and Disposition of Offense(s) / NAVPERS 1626/7 on two occasions—first, on 16 February 2012, acknowledging that you had the right to demand trial by court-martial in lieu of NJP, and later, on 8 March 2012, acknowledging (in the section immediately preceding and literally right above your 16 February 2012 signature) that you had been informed of the nature of the accusations against you, and (on the preceding page of the same document) that, under Article 31(b), UCMJ, you did not have to make a statement, but that any statement you made could be used against you. You allege that a command legal representative requested that you backdate your 8 March 2012 signature, but that you refused. On 9 March 2012, you appealed your NJP to the general court-martial convening authority (GCMCA) via the COS, alleging that your punishment was unjust and disproportionate to the offenses, and that you elected NJP to “apologize for flirtatious posts” and for “allowing the relationship to grow too close.” While you specifically discussed your financial commitments, you did not allege any violations of your NJP rights, and, in particular, you did not allege that you were not timely informed of your rights or that you had been prejudiced in any way. You alleged no other reason that your punishment was unjust. The only other specific allegation you made was that your punishment was disproportionate to your offenses, and you cited five unrelated, dissimilar cases to support your claim that the forfeiture imposed was disproportionate to your offenses, noting the absence of “fines” as part of the punishments in those unrelated cases. In his 20 March 2012 forwarding endorsement, the COS determined that your NJP was neither unjust nor disproportionate to your offenses. He did, however, suspend the forfeiture for six months, to be remitted without further action if you committed no further misconduct. On 23 March 2012, the , , denied your appeal without further comment. The then issued your PLOR on 2 April 2012, and you acknowledged its receipt on 4 April 2012. The PLOR expressly notes that your NJP hearing was conducted after you were “apprised of your rights, pursuant to [the UCMJ], to refuse [NJP] and demand trial by court-martial,” and that you made admissions “after being apprised of your right against self-incrimination.” On 23 May 2012, the COS submitted a Report of NJP / PLOR to the Commander, (PERS 834). You were afforded the opportunity to comment on the adverse matters submitted for inclusion in your official military personnel file (OMPF), but you elected not to submit a statement. You were issued a Special/Regular fitness report and counseling record (FITREP) for the reporting period 1 February 2012 to 23 March 2012. The FITREP documented your NJP. You were afforded an opportunity to acknowledge the FITREP and your right to submit a statement, but you refused to sign it or submit a statement. Your FITREP was then submitted for inclusion in your OMPF. On 3 April 2012, the Fiscal Year (FY) 2013 Active-Duty Navy Lieutenant Commander Line Promotion Board convened. You were selected with a 1 September 2013 projected date of rank. On 17 July 2012 your FY 2013 promotion selection was withheld pending review of the adverse information regarding your misconduct and NJP. In response, you submitted a statement expressing your deep regret for exchanging flirtatious online posts with Sailor’s wife, and taking full responsibility for your actions. On 13 November 2012, the notified you that you were required to show cause for retention in the naval service before a board of inquiry (BOI). Your BOI convened on 14 February 2013. Your counsel submitted a motion to “exclude all materials illegally obtained” in violation of 18 U.S.C. § 2511 (Wiretapping) and 18 U.S.C. § 1030(a)(2) (Computer Fraud and Abuse Act). On 18 January 2013, you submitted a letter to the senior member of the BOI, objecting to the BOI’s consideration of evidence furnished by Sailor. Ultimately, the BOI found that you committed misconduct (but not that your performance was substandard), and, by a vote of 2 to 1, the BOI recommended that you be retained in the naval service. (The minority member determined that, although you had technical capacity for continued service, you did not have the moral capacity for continued service.) As a result, you were retained. On 1 January 2014, the Chief of Naval Operations (CNO) recommended to the Secretary of the Navy (SECNAV) that your name be removed from the FY 2013 Active-Duty Navy Lieutenant Commander Line Promotion List. In his recommendation, the CNO noted your statement requesting to be promoted and your chain of command’s support of your promotion. The CNO concluded, however, that your inappropriate conduct with the spouse of a chief petty officer (CPO) was contrary to the accepted standards of personal conduct for a naval officer. As a result, the CNO did not have the necessary trust and confidence in you to recommend you for promotion to lieutenant commander (LCDR). On 1 May 2014, the SECNAV removed your name from the FY 2013 Active-Duty Navy Lieutenant Commander Line Promotion List. On 6 May 2014, the CNPC notified you that your name was removed from the FY 2013 Promotion List, and that such removal constituted a failure of selection. On 18 May 2015, the FY 2016 Active-Duty Navy Lieutenant Commander Line Promotion Board convened. You were eligible for promotion but failed selection. Your failure to select constituted a second failure of selection, requiring your separation from active duty. On 31 March 2016, you were released from active duty, and you entered into a written agreement to serve in the Ready Reserve until 20 March 2019. Relief Requested (1) Reinstatement into the Navy. (2) Restoration of your promotion to LCDR, effectively resetting your year group, with all backpay and allowances. (3) Removal of your FITREP for the reporting period 1 February 2012 to 23 March 2012. (4) Immediate screening for Aviation Department Head. Board Consideration of Errors and Injustices You allege that the investigative use and disclosure of illegally seized and materially altered electronic communications as evidence against you violated federal law. Specifically, you allege that the electronic communications to which you were a party were unlawfully intercepted, altered, and disclosed to the Government by a third party (Sailor), and that the consideration of such communications as evidence by your commanding officer in imposing NJP (which was referenced in an adverse FITREP, your promotion delay, and your BOI), constitutes probable material error warranting removal of the NJP. Violation of Federal Law by Sailor You allege that the interception of Wife’s private communication was done without her authorization, and that these illegally obtained private communications had been materially altered, constituting a federal felony under 18 U.S.C. § 2511. You allege that the Navy violated 18 U.S.Code § 2511(1)(c) and (d) by disclosing and using the information it knew to be intercepted illegally by Sailor. You allege that, by January 2012, the Navy knew of the purportedly illegal means by which the communications had been intercepted, but, despite its awareness of the illegal means by which these communications were obtained, the Navy used the communications as the sole basis of your NJP and as evidence at your BOI. The Board considered whether an error or injustice exists in your record based on the Navy’s decision to use the evidence Sailor furnished from Wife’s FB account. You claim that the Stored Communications Act (“SCA”) was violated by Sailor’s unauthorized access (“hack”) of Wife’s FB account. Under the statute, however, examples of protected electronic storage include “information that an internet or e-mail provider stores to its servers, information stored with a telephone company, and information maintained by an electronic bulletin board operator—if such information is stored temporarily pending delivery or for purposes of backup protection.” (Emphasis added). The Board, therefore, substantially concurred with the AO that the SCA does not apply to the circumstances of your case. It noted that the SCA creates criminal and civil penalties for the unauthorized access to a “facility through which an electronic communication service is provided” to “obtain, alter, or prevent authorized access to a wire or electronic communication while it is in electronic storage in such system.” Moreover, there is no evidence in the record, and you provided none, that would indicate the information that Sailor accessed was “stored temporarily pending delivery.” The Board thus concluded that Sailor’s access of Wife’s FB account without her authorization (by changing her password) did not violate the SCA, and that only a properly raised claim under the the Fourth Amendment could possibly provide a remedy for a violation of your rights. In this respect, the Board substantially concurred with the AO, noting that the Fourth Amendment does not apply to Sailor’s unauthorized access to e-mails and/or messages, as Sailor was not acting as an agent of the Government when he accessed the e-mails/messages. The Fourth Amendment protects “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Whether a search is reasonable depends, in part, on whether the person who is subject to the search has a subjective expectation of privacy in the object searched and that expectation is objectively reasonable. The private search doctrine reflects the well-established principle that the Fourth Amendment, and its case-law-derived search and seizure rules, do not apply to searches conducted by private parties: “[A] wrongful search or seizure conducted by a private party does not violate the Fourth Amendment and . . . such private wrongdoing does not deprive the government of the right to use evidence it has acquired lawfully.” In order to run afoul of the Fourth Amendment, therefore, the Government must do more than passively accept or acquiesce in a private party’s search efforts. A determination must be made as to “whether the private individual intended to assist law enforcement or instead, had some other independent motivation.” The Board determined that you failed to show that Sailor was acting in anything other than his own personal capacity. The record indicates that he had an “independent motivation” to investigate “romantic phrases” from internet searches on the iPad he shared with his wife, and there is no evidence that the Navy or any official instructed Sailor to conduct these searches. Moreover, the Board determined that you failed to show that Sailor was acting in any official capacity or on behalf of the government in accessing Wife’s private FB messages, and, therefore, the Fourth Amendment does not apply to Sailor’s unauthorized access and disclosure of the private messages to the command. The Board thus concluded that the Navy was not limited in any way in its consideration of the evidence in proceedings against Petitioner. Next, the Board carefully considered your contention that the Navy used materials purportedly illegally obtained in violation of 18 U.S.C. § 2511 (Wiretapping). The Board concurred with the AO that Sailor’s actions did not violate the Wiretap Act. In this regard, the Board noted that, in order to find a violation of the Wiretap Act, a communication must have been “intercepted.” Here, the Board found that Sailor did not “intercept” any e-mails/messages, because the act of “intercepting” must be contemporaneous with the communication, and the Board found no evidence that Sailor had e-mails on “auto-forward” or installed any programs to contemporaneously intercept the e-mails/messages at the same time they were sent between you and Wife. The Board thus concluded that the use of the e-mails/messages in taking adverse actions against you did not violate the Wiretap Act. You also allege that the procedural requirements promulgated by the Navy were not followed in your NJP. In support of this claim, you point to the Report and Disposition of Offenses (NAVPERS 1626/7), which reflects that you did not acknowledge in writing until 8 March 2012, twenty days after your 16 February 2012 NJP, the nature of the accusations against you, your rights under Article 31, UCMJ, and your right to demand trial by court-martial in lieu of NJP. You argue that the Navy’s effort to cure this deficiency by attempting to have you backdate your NAVPERS 1626/7 is evidence of its “blatant” failure to comply with a fundamental procedural right. Your bill of particulars detailing the allegations and claims of due process failures are many. You allege that you were denied basic procedural rights during your NJP because you were not read or made aware, in any capacity, of your rights. Further, you allege that you were not asked to enter a plea to the alleged offenses, thus rendering the NJP arbitrary and capricious. You also claim that your Admiral’s Mast was held just one day after you were told you “needed to decide between NJP or court-martial,” which deprived you the opportunity to prepare a defense. In addition, you contend that you were further impeded in your defense by being dissuaded to have counsel accompany you at the NJP, and by being undermined by Rear Admiral (the NJP authority’s) alleged “blatant contempt” for your requests to call witnesses. Lastly, you assert that you were charged for “being friends with [Wife], being kissed by [Wife] and then asking [Wife] to stop such actions,” and that these actions somehow reflected the blatant bias and rejection of your rights in the minds of Navy and RADM Norton. The Board, however, substantially concurred with the AO and determined that your untimely written acknowledgement on the NAVPERS 1626/7 of your procedural rights does not constitute probable material error or injustice warranting removal of the NJP from your record, and that the relevant issue is whether you were actually advised of your rights prior to NJP. The Board agreed that the NAVPERS 1626/7 demonstrates that you did not acknowledge all of your rights in writing until 8 March 2012. However, despite your assertions that the AO contains several critical legal errors and factual omissions, and that you have rebutted the “presumption of regularity” with substantial evidence, the Board concluded that you were advised of all of your rights prior to the imposition of NJP. You were not denied your due process rights, and the fact that the memorialization of your acknowledgment of rights contained in the NAVPERS 1626/7 occurred after the NJP does not constitute probable material error or injustice warranting removal of the NJP from your naval record. First, the Board noted your claim that your Admiral’s Mast was held just one day after you were told you “needed to decide between NJP or court-martial.” This statement was significant to the Board because, in it, you, in effect, admit that you were aware, at the NJP hearing, of your right to demand trial by court-martial, although you did not acknowledge this right in writing until 8 March 2012. Furthermore, the PLOR you received clearly references that you were apprised of your rights prior to the imposition of NJP, and you elected not to submit a statement disputing this fact or any of the claims made in the PLOR. The Board also notes that your record reflects that you are a law school graduate and were an attorney before you entered the Navy. Next, the Board considered your claim that you were not advised of your rights at the NJP proceedings. You allege that this claim is corroborated by the alleged fact that you consistently maintained that the NJP authority and his staff judge advocate (SJA) failed to advise you of your rights in any capacity, by your affidavit alleging that you were not advised of your rights, and that the NAVPERS 1626/7 itself (in addition to other irregularities) corroborates that you were not informed of your rights. The Board noted, however, that, on numerous occasions, you had the opportunity to challenge the validity of your NJP based on alleged violations of your rights, but you failed to do so. In particular, the Board noted that there is no evidence that you raised this issue when you signed your NAVPERS 1626/7 on 8 March 2012. Your only objection was that you would not backdate the form. The Board also noted that the gravamen of your 9 March 2012 NJP appeal was that the forfeitures awarded were disproportionate to your offense. Indeed, in your appeal, you cited five unrelated cases to support this single claim, particularly noting the absence of “fines” as punishment in those cases. In your appeal, you did not allege any violations of your NJP rights or your right to due process, and you did not identify any prejudice resulting from your later memorialized written acknowledgment of your rights at NJP. The Board noted, further, that you also had an opportunity to submit a written statement when you were issued your FITREP for the reporting period 1 February 2012 to 23 March 2012, which documented your NJP. However, you refused to sign the report, again forfeiting another opportunity to make a statement regarding the alleged violation of your rights. Moreover, although your PLOR clearly states that you were “apprised of your rights” and that you made admissions “after being apprised of your right against self-incrimination,” you again declined to make any statement when again afforded the opportunity to do so. Similarly, in your responses to the Report of NJP and in response to your notification that your FY 2013 promotion selection was being withheld, you once again made no mention that you were not apprised of your rights prior to your NJP, or that any of your rights were violated. Instead, the Board found that your allegation that you were not apprised of your rights was first raised at your BOI, a year after your NJP, and after numerous opportunities in which one might reasonably have been expected to raise such a claim. The Board found that, contrary to your assertion, you did not “consistently maintain” that the NJP authority and his SJA failed to advise you of your rights, or that you were not informed or otherwise unaware of your rights at the NJP proceeding. The Board thus concluded that your contention is without merit. With regard to your contention that that you were punished for “being friends with [Wife], being kissed by [Wife] and then asking [Wife] to stop such actions,” and that these actions did not warrant the blatant bias and rejection of your rights by the Navy and the NJP authority, the Board noted that you accepted NJP for engaging in an inappropriate and unduly familiar relationship with the wife of a CPO assigned to your command. The Board also noted that, in your 9 March 2012 NJP appeal, you did not claim that you were not guilty of the misconduct, or that the NJP authority was biased and violated your rights, but, instead, only that “the punishment was unjust and disproportionate to the offense.” Moreover, in your appeal, you admitted to “flirtatious posts,” “allowing a friendship to grow too close,” and that “inappropriate language was initiated by the other party, mutual, and reciprocated.” The Board determined that your contention is without merit because, not only did the NJP authority find by a preponderance of the evidence that you committed misconduct, you also admitted to it. Additionally, although the NJP authority did not view your punishment was unjust or disproportionate, he did suspend your forfeitures of pay for six months in response to your request for relief due to your personal financial situation. The Board concluded, therefore, that there is insufficient evidence to show that the NJP authority was biased against you. The Board also considered your contention that, because you were not asked to enter a plea to the alleged offenses, your NJP was rendered arbitrary and capricious. The Board noted, however, that nothing in law or regulation requires the entry of pleas at NJP. The Board thus determined that this contention lacks merit. With regard to your contention that your Admiral’s Mast was held just one day after you were told you “needed to decide between NJP or court-martial,” which you contend deprived you of the opportunity to prepare a defense, the Board noted that no law or regulation requires a waiting period before NJP may be imposed. Instead, at any time before your punishment was imposed, you simply could have demanded trial by court-martial in lieu of NJP, a fact the record and your training show you were clearly aware of. You did not do so. Finally, the Board considered your contentions that you were further impeded in your defense because you were “dissuaded” from calling witnesses or being accompanied by counsel. The Board noted, however, that you do not allege that you requested witnesses or to be accompanied by counsel, and that such requests were denied. In any event, the Board was not persuaded by your evidence (including your affidavit and the second-hand account of your witness based largely on your statements to her) that your decision not to call witnesses or be accompanied by counsel was involuntary or improper—a conclusion further supported, in the Board’s view, by your previous legal education and practice, and your repeated failures to raise such claims in your NJP appeal, PLOR appeal, or responses to the Report of NJP or your promotion selection delay. Board Decision For the foregoing reasons, the Board determined that your subsequently memorialized acknowledgement on NAVPERS 1626/6 does not constitute probable material error or injustice warranting the removal of your NJP from your OMPF. The Board determined, further, that the consideration of allegedly unlawfully obtained evidence in your NJP, promotion delay, and BOI does not constitute probable material error or injustice warranting the removal of your NJP from your OMPF. In this regard, the Board concluded that you have not overcome the presumption of regularity with substantial evidence to the contrary, and that you have therefore not shown any probable material error or injustice in your record. Accordingly, the Board unanimously concluded that your request for reinstatement into the Navy, restoration of your promotion to LCDR, removal of your FITREP for the reporting period 1 February 2012 to 23 March 2012, and screening for Aviation Department Head are all unwarranted. It is regrettable that the circumstances of your case are such that favorable action cannot be taken at this time. You are entitled to have the Board reconsider its decision upon the submission of new matters. 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.