Docket No. 8573-19
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. 
 
Although your application was not filed in a timely manner, the Board found it in the interest of justice to waive the statute of limitations and consider your application on its merits.  A three-member panel of the Board, sitting in executive session, considered your application on 29 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.  The Board also considered the 5 December 2019 advisory opinion (AO) furnished by the Navy Personnel Command (PERS-32).  Although you were afforded an opportunity to submit a rebuttal, you did not do so. 
 
The Board carefully considered your request to remove your fitness report for the reporting period 1 November [2007] to 20 June 2008.  The Board considered your contention that this report was submitted with incorrect dates, without your knowledge or signature, and that it conveys retaliation and adversity.  You assert that the report was submitted during a period when you filed a sexual harassment report, and that an investigation substantiated your claims of sexual harassment and discrimination. 
 
The Board, however, substantially concurred with the AO.  In this regard, Board determined that the error in the reporting period date is administrative and does not invalidate the report.  The Board noted that your reporting senior (RS) commented that you had difficulty performing routine and administrative taskers during the reporting period, which required your acknowledgement prior to submitting to your official military personnel file.  However, the fitness report reflects that you “refused to sign” and is signed and dated by a witness to this fact.  The Board also determined that your allegation of not having knowledge of the fitness report is unsubstantiated, especially when considering that the report has been on file for more than 11 years from the date of your petition, and you did not submit a statement indicating disagreement with the report after submission. 
 
The Board also determined that there is no evidence that the report was written in direct retaliation or that it was impacted in any way due to a sexual harassment complaint brought against the command.  Lastly, the Board determined that there is no evidence that your RS abused his discretionary authority in this evaluation.  
 
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 attachés 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,