DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
MBH
Docket No. 12157-08
9 Jun 09
This is in reference to your application for correction of your naval
record pursuant to the provisions of 10 USC 1552.
A three-member panel of the Board for Correction of Naval Records,
sitting in executive session, considered your application on 8 June
2009. 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 opinion furnished by CNRC memo 1133 Ser 32/ of 18 Feb 09,
a copy of which is attached and your reply to that memorandum.
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 opinion. In particular, the Board found the
following: You previously served on active duty in the United States
Navy between approximately 1979 and 1988 as a Data Processor. After a
substantial gap in service of about 20 years, in approximately July
2008, at age 49, you sought to enlist in the Master-at-Arms rating.
Due to manning requirements at that time, you were only offered and
approved for enlistment as an E-5. Thereafter, you sought approval to
enlist at the’ higher pay grade of E-6 vice E-5, but due to manning
requirements, the earlier determination to approve you only for
enlistment as an E-5 (vice E-6) was once again confirmed. The Board
found that you thereafter knowingly and voluntarily accepted the terms
of the enlistment that were offered (EB-5} by entering into a written
enlistment contract on 12 September 2008. There is no evidence that
the Navy defrauded you into thinking that you would be enlisted at a
higher rate or that you were otherwise mistaken about the terms of the
enlistment contract. The Board carefully considered your claim that
you had insufficient time to make a decision about whether to enlist.
Docket No, 12157-08
However, the Board was of the opinion that you had sufficient time to
consider your options and to decide whether to enlist as an E-5.
Moreover, the Board found that any limit on the time that was
available for you to make a decision on your enlistment was
attributable to your lengthy gap in service and not attributable to
any error.or injustice in the enlistment process. The Board noted
that you did not reject the enlistment offer as made (as you could
have done). Rather, by executing the enlistment contract, you
expressly accepted the terms of the enlistment including the provision
that you would be enlisted as an E-5. The Board found that by
executing the enlistment contract you expressed a willingness and
intent to be legaily bound by the terms of the contract and found no
error or injustice that would warrant changing the enlistment grade
now from E-5 to E-6. The Board was of the opinion that the Navy
should be entitled to rely on the express promises that you made in
your enlistment contract and that it would be fundamentally unfair for
you to retroactively change the terms of the enlistment contract after
those terms were reduced to a writing an agreed upon. The Board
members also considered your request for a personal appearance,
however they found that the issues in the case were adequately
documented and that a personal appearance would not materially add to
the Board's understanding of the issues involved. Accordingly, your
application, and your request for a personal appearance before the
Board, have 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 only upon submission of new and material
evidence or other matter not previously considered by the Board. In
this regard, it is also 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 PFEI
Executive Di
Enclosure
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