DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
HD:hd
Docket No. 009830-10
17 February 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 February 2011. 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 and
applicable statutes, regulations and policies. In addition, the
Board considered the advisory opinion furnished by the Navy Personnel
Command (NPC) dated 12 October 2010 and the NPC e-mail dated 10
February 2011, copies of which are attached. The Board also
considered your counsel’s letter dated 26 January 2011 with
attachments.
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. The Board was unable to find you
were punished for the exercise of independent professional judgment
on behalf of your client in violation of Navy Rule of Professional
Conduct 5.4, that the contested fitness report was in reprisal for
your communications with the chain of command in the course of your
representation of your client, that you were punished for zeal in
representing your client in violation of title 10, United States
Code, Section 949b(b), or that you received an unfavorable
performance evaluation because of such zeal in violation of Bureau
of Naval Personnel Instruction 1610.10B, enclosure (2), paragraph
4. The Board found you have not exhausted your administrative
remedies to have your statement filed in your record with the
contested report. Since the Board found insufficient basis to
remove the report at issue, and you have not exhausted your
administrative remedies concerning your statement, the Board found
your failure of selection by the Fiscal Year 11 Staff Commander
Selection Board should stand, that you should not be afforded
consideration by a special selection board, and that you should not
be granted an end of tour award for your service at the command from
which you received the contested detachment of individual fitness
report. Inviewof 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,
es
Executive
Enclosure
Copy te:
Mr. Lawrence Fox
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