DEPARTMENT OF THE NAVY
BOARD FORCORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
BJG
Docket No: 8350-01
19 December 2001
This is in reference to your application, docket number 3466-00, for correction of your naval
record pursuant to the provisions of title 10 of the United States Code, section 1552. You
requested promotion to lieutenant commander with a date of rank and effective date of
1 April 1998. You also requested removal of any failures of selection to lieutenant
commander. By implication, you requested removal of documentation of your removal from
the Fiscal Year 1998 Line Lieutenant Commander Promotion List. This application was
denied on 10 January 2001. The attached letter from the Assistant General Counsel
(Manpower and Reserve Affairs), dated 26 November 2001, directed that your case be
reconsidered for the purpose of addressing your entitlement to purely equitable relief.
Pursuant to this direction, your case was reopened and assigned a new docket number,
8350-01.
A three-member panel of the Board for Correction of Naval Records, sitting in executive
session, reconsidered your case on 14 December 2001. 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 the Assistant General Counsel’s letter, the Board’s file on your case, your naval
record and applicable statutes, regulations and policies. The Board presumed you now also
request cancellation of your discharge from the United States Navy on 1 March 2001, which
resulted from your previously contested failures of selection for promotion.
After careful and conscientious consideration of the entire record, the Board found that the
evidence submitted was insufficient to establish the existence of probable material error or
injustice. In concluding that you do not merit equitable relief, they found that you came to
the Board with unclean hands, noting the misconduct which resulted in the delay of your
promotion and your ultimate removal from the promotion list. Your counsel contends that
you are entitled to relief on the equitable ground which, he asserted, the Board embraced in
the case of another officer, docket number 11165-90. However, they noted that the
recommendation for relief in that case actually was not based on equitable grounds, but
no Secretarial authority for the delay of the applicant ’s promotion
rather a finding that since
had been obtained when his projected promotion date arrived, his promotion should have
been effected on that date in accordance with title 10 of the United States Code, section
624(a)(2). In view of the above, the Board again voted to deny relief. The names and votes
of the members of the panel will be furnished upon request.
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
and material evidence or other matter not previously 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,
Enclosure
DEPARTMENT OF THE NAV
OFFICE OF THE ASSISTANT SECRETARY
(MANPOWER AND RESERVE AFFAIRS)
Y
1000 NAVY PENTAGON
WASHINGTON, D.C. 20350-1000
November 26, 2001
MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION
OF NAVAL RECORDS
Subj:
SN,
IW DOCKET
This matter was referred to the Board for Correction of
n t
t o
Naval Records (BCNR) by agreement of the parties in a case
brought by
tes Court of Federal
Claims. A
counsel, I have reviewed
the 11 January 2001 decision of the BCNR.
While I believe the
decision, as written, explains the basis of the decision in a
manner that is adequate for the purposes of judicial review, I
believe some further articulation of the rationale of the BCNR's
decision is warranted.
To that end, please refer this case to the panel that
considere
ition and provide a report
originally
that addresses whether petitioner is entitled to be promoted in
While the BCNR decision
order to correct an error or injustice.
addresses petitioner's legal contention that he was promoted by
operation of law,
rationale provided in the Judge Advocate General advisory
opinion, the decision provides no detailed explanation regarding
petitioner's entitlement to purely equitable relief.
reconsider this contention and provide a recommendation regarding
relief and detailed report explaining the
and rejects that contention based on the
BCNR's rationale.
Please
ULpe-
vcz
anpower an
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