Docket No: 6167-19
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 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 25 August 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 31 July 2019 advisory opinion (AO) furnished by the Navy Personnel Command (PERS-32), which was previously provided to you.  Although you were afforded an opportunity to submit a rebuttal, you did not do so. 
 
The Board carefully considered your request to remove the evaluation and counseling record for the reporting period 16 September 2018 to 16 April 2019.  The promotion recommendation for the report was Significant Problems (SP).   The reporting senior comments noted loss of confidence in your ability to lead and that you were not recommended for advancement or retention.  You contend the fitness report is based on allegations of an ongoing investigation into decisions made by the petitioner during the E5 ranking board.  As a result, the Commanding Officer issued the fitness report as retribution to those decisions prior to the conclusion of the investigation. 
 
The Board noted that the AO recommended your request be denied, due to the fact that BUPERSINST 1610.10D, allows a reporting senior to “include comments on misconduct whenever the facts are clearly established to the reporting senior’s satisfaction.” The Board further noted that no evidence was provided that the basis of the fitness report was an ongoing investigation or that the reporting senior acted for an improper purpose.  The Board determined that your reporting senior’s action to comment on your performance and to assign a “SP” promotion recommendation was valid.  Consequently, the Board concurred with PERS-32 that the contested evaluation is administratively correct and concluded that it shall remain in your official military personnel file. 
 
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,