DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
701 S, COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490
BUG
Docket No: 3737-13
16 July 2014
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.
It is noted that you allege that you filed an Article 138
Uniform Code of Military Justice complaint of wrongs for which
you have not received a response. It is recommended that you
contact the command where you filed the complaint to find out
the results.
You requested removal of a nonjudicial punishment (NJP) held on
28 May 2008, retirement in the rank of commander (pay grade 0o-
'5), and removal of two fitness reports for 5 October 2006 to 18
April 2007, and for 17 August 2007 to 8 January 2008.
A three-member panel of the Board for Correction of Naval
Records, sitting in executive session, considered your
application on 15 July 2014. 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.
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.
On 28 May 2008, you received NUP for larceny, wrongful
appropriation and fraud against the United States government.
You accepted NUP rather than requesting trial by court-martial.
You were found guilty and did not appeal. Your punishment was a
punitive letter of reprimand.
in its review of your application, the Board carefully weighed
all potentially mitigating factors, such as your counsel’s
contention that the NUP was in, error because you did not have
the necessary intent to commit’ larceny and defraud the
government. The Board found that you were given the opportunity
to consult with counsel prior to accepting your NUP. .The Board
concluded that you have failed to prove an error or injustice in
the imposition of the NUP and it shall remain in your official ©
military personnel file. Regarding your counsel's contention
concerning the NUP, the Board particularly noted that you did
not appeal the guilty findings and that you knew that you did
not use a taxi to muster when you submitted your travel claim.
Concerning counsel’s allegation that your waiver of your right
to demand trial by court-martial was invalid because your
military lawyer refused to form an attorney-client relationship
with you, the Board found that you are not entitled to have a
Military attorney represent you at NUP.
Regarding counsel's contention that you waived a Board of
Inquiry in exchange for a promised recommendation of retirement
in the pay grade of O-5, the Board found that in your Voluntary
Retirement Request dated 19 February 2010, you agreed that the
Secretary of the Navy (SECNAV) could retire you in a lesser pay
grade, and that your retirement grade would be the highest grade
in which you served satisfactorily. The Board further found
that you committed the misconduct in pay grade 0-4, so it agreed
with SECNAV’s determination that the last pay grade in which you
served satisfactorily was 0-3.
Concerning counsel’s allegation that the contested fitness
report for 5 October 2006 to 18 April 2007 should have been not
observed, the Board found that the reporting senior (RS)
believed he had sufficient information to render an observed
report. The Board found no requirement for your RS to conduct
mid-term counseling. If you wish to submit a rebuttal statement
to this report, please send it to the Navy Personnel Command
(PERS-311), 5720 Integrity Drive, Millington, Tennessee 38055-
3110. Regarding counsel’s contention that you should have hada
fitness report upon the detachment of the previous commanding
2
officer, you may wish to contact him and request that he submit
a report to PERS-311.
concerning counsel’‘s allegation that your adverse fitness report
for 17 August 2007 to 8 January 2008 was erroneous and unjust,
the Board particularly noted that you did not submit a rebuttal
statement to it,
Since the Board found no basis to remove the NJP or fitness
reports, it had no basis to advance you on the retired list to
pay grade 0-5. 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,
ROBERT D. ZASALMAN
Acting Executive Director
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