DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
HD:hd
Docket No. 07237-10
18 March 2011
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.
A three-member panel of the Board for Correction of Naval Records,
sitting in executive session, considered your application on 17 March
2011. Your allegations of error and injustice were reviewed 1.
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 and applicable statutes,
regulations and policies. In addition, the Board considered the
advisory opinion furnished by the Navy Personnel Command dated
26 July 2010, a copy of which is 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 opinion in concluding the contested
performance evaluation report should stand. In this regard, the
Board particularly noted that you were, in fact, reduced. The Board
did not believe the reduction in rate (RIR) should be considered to
have been unjust, from the outset, just because the commanding
officer made an after the fact determination that it should be
mitigated. The Board felt +t would not be a material correction to
grant partial relief, as the advisory opinion recommends, by
modifying the contested report to remove all references to the RIR
that has been mitigated, since this action would leave in the record
references to the nonjudicial punishment (NOP) and the other
punishments imposed, and it would leave in the contested report both
the low mark in block 36 (“Military Bearing/Character”) (“2.0"
(second lowest of five possible marks)) and the block 45
recommendation against advancement. Moreover, the Board found that
the court memorandum dated 29 January 2009 and the uncontested
performance evaluation report for 17 November 2008 to 1 February 2009
adequately document in your record that the punishment awarded for
your NJP no longer includes the RIR. Finally, the Board noted that
modifying the contested report as the advisory opinion recommends
would make this “special” report appear to have been submitted for
an unauthorized reason. 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. Youare 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,
\) Qe :
W. DEAN ihedf
Executive Dirs¢étor
Enclosure
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