Docket No: 5997-19 Ref: Signature Date 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. 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 14 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 as well as the 9 December 2019 advisory opinion (AO) furnished by Navy Personnel Command (NPC), Officer of Legal Counsel (PERS-00J). The AO was provided to you on 30 December 2019, and you were given 30 days in which to submit a response. When you did not provide a response, your case was submitted to the Board for consideration. The Board carefully considered your request to remove your Report and Disposition of Offenses documenting your 12 June 2017 non-judicial punishment (NJP) and all related documents. You also request to remove your fitness report for the reporting period 16 June 2016 to 15 June 2017. The Board considered your contentions that your commanding officer (CO) failed to consider the evidence before him, your status as a victim was discounted, and your CO made a factual claim regarding his belief in your version of the events that was inconsistent with the evidence in his possession. You claim that the comments about the sexual assault are what pushed you to regrettable action. You also contend that your fitness report is unjust because it is based on your unjust NJP. The Board, however, substantially concurred with AO that your contentions do not negate the interest of the command and the Navy to maintain good order and discipline, nor have you proven that your NJP and punishment were improper or unjust. The Board noted that you received NJP for violation of Article 128, Uniform Code of Military Justice (UCMJ), for assaulting another sailor by striking her face with your hand. The Board also noted that 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 noted, too, that the Commander, U.S. considered and denied your appeal. Concerning your contention that your CO failed to consider the evidence before him as he was required to do, the Board found no evidence that your CO failed to consider all available evidence, and you provided none. The Board, however, noted that you repeatedly acknowledged assaulting the other sailor and provided evidence of your apology. The Board also noted that your CO awarded you less punishment than recommended by the Disciplinary Review Board and he did not exceed the punishment authorized under Article 15, UCMJ. The Board determined that your CO had the full collection of extenuating and mitigating facts before him during your NJP, and your awarded punishment is evidence that he considered all of the facts during the conduct of your NJP. Concerning your contention that your status as a victim was discounted, the Board noted that you were the recipient of unwanted sexual attention by an E-7 and intervened during his sexual assault on another Sailor, however, the Board found no evidence that your CO failed to consider the impact your experience may have had on your misconduct, and you provided none. Concerning your argument that the other Sailor’s comments about the sexual assault pushed you to strike her, the Board determined that, even if the other Sailor intended to reference the sexual assault, the law does not support your argument as a defense for committing assault. Concerning your request to remove your contested fitness report, the Board determined that your CO’s finding of guilt during your NJP was just and within his discretionary authority pursuant to Article 15, the Manual for Courts-Marital (2016 ed.). The Board also determined that your reporting senior’s block 43 comment that you were awarded NJP was authorized pursuant to BUPERS INSTRUCTION 1610.10D, the Navy Performance Evaluation System (EVALMAN). Moreover, 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. Sincerely,