Docket No: 7615-19
Ref: Signature Date                         

 
Dear : 
 
This is in reference to your application for reconsideration of the previous decision of the Board for Correction of Naval Record (Board) denying your request to remove a record of nonjudicial punishment from your record (Docket No. 0798-18).  On 23 December 2020, a three-member panel of the Board, sitting in executive session, carefully reviewed the contents of your reconsideration request, and determined that you provided no material not already considered by the Board.  Accordingly, your request for reconsideration has been denied.    
 
You requested reconsideration based upon your belief that the Board failed to comply with the requirements of the Administrative Procedure Act (APA) and that the Board was mistaken with regard to the law pertaining to the right to counsel.  Specifically, you asserted that the Board erred in concluding that your waiver of counsel was voluntary and intelligent under the circumstances and that counsel was not required to discuss “the law in relation to the facts,” and that it violated the APA by not explaining why the holding in Fairchild v. Lehman, 814 F.2d 1555 (Fed. Cir. 1987).  As you are aware, the Board based its findings in large part upon an advisory opinion provided by the Office of the Judge Advocate General of the Navy, to which you provided a rebuttal for the Board’s consideration.  The advisory opinion addressed these issues, to include the Fairchild case, and your rebuttal made the same arguments that you have made in your present request for consideration.  Accordingly, your request for reconsideration offers no matters not previously considered by the Board. 
 
You are entitled to have the Board reconsider its previous 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,