DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
yoi 5. COURTHOUSE ROAD. SUITE 10014
ARLINGTON, VA 22204-2490
HD
Docket No. NR9645-14
11 September 2014
Dear Commander any
This is in reference to your counsel's letter dated 1 August 2014
to the Assistant Secretary of the Navy (Manpower and Reserve
Affairs), seeking reconsideration of your previous application for
correction of your naval record pursuant to the provisions of title
10, United States Code, section 1552. Your previous case, docket
number NR8564-13, was denied on 24 April 2014. You again seek
restoration to the Fiscal Year 13 Navy Reserve Line commander
Promotion List; promotion to commander with the date of rank and
effective date you would have received, ha@ you not been removed from
the promotion list; and removal of all adverse information.
A three-member panel of the Board for Correction of Naval Records,
sitting in executive session, reconsidered your case on il September
2014. Your aliegations 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, the Board's file on your
prior case 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.
Your counsel contended that the advisory opinion from the Navy
Personnel Command dated 19 February 2014, with which the Board
substantially concurred in denying your original application, should
not have been considered, as it “contains a legal error based on a
misunderstanding about what the regulation [Department of Defense
(DOD) Instruction 1320.04) excludes andwhy.” The advisory opinion,
citing DOD Instruction 1320.4, dated 14 March 1995, noted that this
regulation (paragraph 3.1) defined “Adverse Information” as “Any
substantiated adverse finding or conclusion from an officially
documented investigation or inquiry.” Since the information on
which your removal from the promotion list was based came from an
investigation conducted by the Chief of Naval Personnel Inspector
General (CNP IG), the advisory opinion concluded that it was properly —
treated as “Adverse Information” the Secretary of the Navy was
required to review and consider concerning your promotion, which was
a military officer action requiring approval of the President, the
‘Secretary of Defense or confirmation by the Senate. Your counsel,
citing DOD Instruction 1320.04, dated 3 January 2014, relied on
Enclosure 4, paragraph 1.a(1)(b)2, which referred to information
that “Did not result in more than a non-punitive rehabilitative
counseling administered by a superior to a subordinate.” He
contended that this language, which does not appear in DOD
Instruction 1320.4, excluded from the definition of “Adverse
information” properly to be considered in connection with your
promotion the findings of the CNP IG investigation, because you
received only a non-punitive letter of caution for the infraction
the CNP IG investigation found you had committed.
The Board found that the advisory opinion properly applied DOD
Instruction 1320.4, rather than DOP Instruction 1320.04, which was
not issued until well after you had been removed from the promotion
list on 21 March 2013. Further, the Board found that even under DOD
Instruction 1320.04, the information in question was properly
treated as “Adverse Information” to be considered in connection with
your promotion. In this regard, the Board noted that Enclosure 4,
paragraph 1.a(1) (b) provides that in order for the language of
paragraph 1.a(1) (b)2 to be applicable in causing information not to
be adverse, the matter concerned must involve “Minor infractions
without negative effect on an individual or the good order and
discipline of the organization.” The Board found that the
infraction identified in your case, improperly divulging the results
of an officer promotion board, did have a negative effect on the good
order and discipline of the Navy.
In view of the above, the Board again voted to deny relief. 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,
Ylwl Jhaott
ROBERT J. O'NEILL
Executive Director
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