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NAVY | BCNR | CY2006 | 01496-06
Original file (01496-06.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5 100

 HD : hd
 Docket No. 01496-06
11 December 2006









This is in reference to your application for correction of your naval record pursuant to the provisions of title 10 of the United States Code, section 1552.
You requested that the enlisted performance evaluation report for 16 March to 21 October 2005 (ending date changed to 14 February 2006) be removed, that your reduction of 19 August 2005 from pay grade E-5 to E-4 be set aside, and that you be restored to pay grade E-5 with your original time in rate date and effective date. You further impliedly requested removing all documentation of your nonjudicial punishment (NJP) of 22 June 2005 and the vacation of suspension of your reduction to pay grade E-4 on 19 August 2005.
A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 7 December 2006. 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, your naval record and applicable statutes, regulations and policies. In addition, the Board considered the advisory opinions furnished by the Navy Personnel Command (NPC) (PERS-4832B), dated3OAugust2006withenclosures, NPC (PERS-48311E9) dated 30 August 2006 with reference (b), and NPC (PERS-31l) dated 31 August 2006, copies of which are attached. The Board also considered the Commander, U. S. Naval Forces, Japan memorandum dated 5 March 2006 and the Deputy Assistant Secretary of the Navy (Military Personnel Policy) letter dated 19 October2006 concerning your complaint of wrongs under Article 138, Uniform Code of Military Justice, copies of which are attached.
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 this connection, the Board substantially concurred with the comments contained in the advisory opinions from PERS-4832B and PERS-3l1. The Board noted that block 2 of the contested performance evaluation report erroneously showed your rate as DK2 (pay grade E-5), rather than DK3 (pay grade E-4), but did not consider this a material error warranting removal of the report. If you wish, you may pursue having this error corrected administratively. The Board was unable to find you were not advised of your right to counsel or your right to refuse NJP in connection with the NJP of 22 June 2005. The Board was likewise unable to find you did not commit the misconduct that was the basis for the vacation of suspension of your reduction to pay grade E-4. While the same misconduct was the basis for both the vacation of suspension of your reduction to pay grade E-4 and the NJP of 19 August 2005 that was set aside, the Board particularly noted that the set aside was based on a finding that you were not fully advised of all your legal rights in connection with the NJP. This basis for setting aside the NJP did not invalidate the vacation action. In view of the above, your application has been denied. 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,



                                                                        W. DEAN PFEIFFER
                                                                        Executive Director






Enclosures

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