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. 
 
A three-member panel of the Board, sitting in executive session, considered your application on 29 September 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 14 November 2019 advisory opinion (AO) furnished by the Navy Personnel Command (PERS-32) and the 23 December 2019 AO furnished by the Office of Legal Counsel (BUPERS-00J), which were 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 a 19 March 2019 Letter of Instruction (LOI) issued for violation of the Uniform Code of Military Justice (UCMJ) Article 134, and to remove all reference to the LOI from your evaluation and counseling record for the reporting period 16 September 2018 to 25 March 2019.  You contend that the LOI does not track the proper format or requirements and should be considered a Letter of Caution (LOC).  You further allege that you submitted a statement in rebuttal but that the statement and the requisite command endorsement is not in your record.  
 
The Board noted that the LOI is not in your official record and thus cannot be removed from your record.  The Board further noted that the BUPERS-00J AO recommended that the traits  assigned in Blocks 35, 37, and 39 as well as the comments in Block 41 regarding those traits should remain in the contested evaluation but to redact the verbiage “awarded a Letter of Instruction” from Block 41.  The Board concurred with the AO that BUPERSINST 1610.10D, allows the underlying behavior of a non-punitive censure to be mentioned in a chief evaluation and that the evaluation “should take into account misconduct that has been established through reliable evidence to the reporting senior’s satisfaction.”   
 
The Board noted that you did not dispute the evaluation and that you did not dispute that you engaged in the misconduct in your petition to the Board.  The Board determined that your reporting senior’s (RS’s) action to comment on your misconduct was valid; however, since there is no LOI in your record that any language specifically stating “LOI” should be removed from the evaluation.  Consequently, the Board concurred with BUPERS-00J that the traits assigned to blocks 35, 37 and 39 of the fitness report are valid and shall remain and that the underlying behavior mentioned in Block 41 to substantiate the traits assigned to those blocks shall remain with the following modification, the words “awarded a Letter of Instruction” shall be redacted. 
 
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,