Docket No: 6961-19 
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 6 October 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 21 October 2019 advisory opinion (AO) furnished by the Navy Office of Legal Counsel (PERS-00J).  The AO was provided to you on 1 September 2020, 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 Offense(s) documenting your 18 July 2016 non-judicial punishment (NJP) and your evaluation report for the reporting period 29 February 2016 to 18 July 2016.  You also request payment of special duty assignment pay as a canvasing recruiter, retirement credit, and pay and allowances from 14 November 2016 (end of active service) to 2 February 2018 (end date of your original contract).  The Board considered your contentions that (1) you were not afforded your right to counsel prior to your NJP, (2) you were wrongfully influenced to accept NJP, and not to appeal the NJP based on assurances by your Commanding Officer (CO) that you would not be separated for accepting NJP, (3) the evidence was obtained in violation of your Article 31, Uniform Code of Military Justice (UCMJ) rights and the evidence was insufficient to satisfy the requisite burden, (4) the allegations were unreasonably multiplied, stemmed from the same transaction and were not supported by substantial evidence, (5) your NJP was disproportionate to the alleged violations, (6) your adverse evaluation was not supported by sufficient rationale and was issued out of an apparent act of reprisal, (7) you were not afforded an opportunity to submit a waiver for High Year Tenure (HYT) prior to separation and your orders were terminated contrary to statutory and regulatory due process protections, and (8) you continued performing recruiter production duties after your command stopped your special duty pay.  You claim that English is your second language, you did not have your personal credit card available to you, you used your government travel charge card (GTCC) for family travel because they were left with your husband; a drug user, you lacked GTCC training, and there were no restrictions on out of area travel during your training. 
   
The Board, however, substantially concurred with the AO.  In this regard, the Board noted that you received NJP for violations of the Uniform Code of Military Justice (UCMJ), specifically, Article 86 (Unauthorized Absence) for being absent without leave on three occasions, Article 92 (Failure to Obey Lawful General Order or Regulation) for unauthorized use of your GTCC, Article 107 (False Official Statement) for false statements regarding booked flights, and Article 108 (Military Property of the United States-Loss) for losing your government issued iPhone5.  The Board also noted that you were properly notified of your Article 31, UCMJ rights, you elected to accept NJP, you were afforded the opportunity to consult with a military lawyer, you gave up your right to talk to a lawyer, you were afforded your right to appeal the NJP, and you elected not to appeal your NJP.  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.).   
 
Concerning your contested evaluation report, the Board determined that your evaluation report was based upon your performance and conduct which resulted in your NJP, thus your evaluation report is valid and shall be retained as filed.  The Board found no evidence that you were wrongly influenced to accept NJP and not to appeal your NJP or that you continued recruiter production duties after you special pay stopped and you provided none.   
 
Concerning your ability to submit a waiver for HYT, the Board determined that, in your case, the waiver for HYT did not apply as your orders were terminated due to loss of confidence due to your misconduct.  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.  Based upon the fore mentioned determinations, the Board found no basis to justify the payment of pay and allowances and retirement credit beyond your end of active service, or additional canvasing recruiter pay.  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 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,