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Docket No. ND03-01102

DEPARTMENT OF THE NAVY
 NAVAL DISCHARGE REVIEW BOARD (NDRB)
                     DISCHARGE REVIEW
                   DECISIONAL DOCUMENT

 ex-ENS, USN
Docket No. ND03-01102

Applicant’s Request

The application for discharge review was received on 20030610.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040430.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: SECNAVINST 1920.6B.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I do not believe the circumstances warranted my separation from the Navy.  I had two incidents as a Jr. officer based on bad judgment by a young officer who had what it takes to be an officer but made mistakes.  I was sent to my ship as an Ensign who had no help or guidance as to what was required of an officer off duty.  My chief was non-existent and racist.  I had no prior military experience, and my only exposure was at OCS for 13 weeks and then Surface Warfare Officer School.  The reason I chose to resign my commission was to save myself and my family the disgrace & humiliation of fighting a battle I couldn’t win.  Since separation I have moved to John Deer and have been granted 2 promotions in 3 years.  I am a very productive and valved employee of management.  Here I was given the opportunity I should have gotten in the military.  I am treated as I belong, which never happened aboard my ship.  I still cherish the times I spent in the Navy and I know I am a better man because of it.  Thank You  [Signed by the Applicant]”

Documentation

Only the service and medical records were reviewed, as the Applicant did not provide additional documentation for the Board to consider.  

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Inactive: None
	Active:   Officer Candidate School	970726-971106	To accept commission

Period of Service Under Review:

Date of Commission:  971107	Date of Discharge:  000630

Length of Service (years, months, days):

	Active:    02 07  24
	Inactive:  None

Age at Entry:  26	

Education Level:  16	

Highest Rank:  LTJG

Final Officer Performance Evaluation Averages:  All officer performance reports were available to the Board for review.

Military Decorations:  None

Unit/Campaign/Service Awards:  MUC

Days of Unauthorized Absence:  None

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  SECNAVINST 1920.6B.

Chronological Listing of Significant Service Events:

990331:	CO, USS TORTUGA, forwarded Applicant’s resignation request in lieu of separation, recommending approval.

990514:	NJP for violation of UCMJ, Article 117:  Provoking speeches or gestures; violation of UCMJ, Article 128: Assault; violation of UCMJ, Article 134:  Fraternization; violation of UCMJ, Article 133 (4 Specs):  Conduct Unbecoming an Officer.
	Award:  Letter of Reprimand.  

990518:	Punitive Letter of Reprimand issued.

990520:	Applicant submitted appeal of NJP of 14 May 99.

990524:	Applicant submitted appeal of Letter of Reprimand.

990527:	CO, USS TORTUGA (LSD 46) forwarded Applicant’s letter of appeal of NJP to Commander, Amphibious Group Two, recommending disapproval.

990527:	CO, USS TORTUGA (LSD 46) forward Applicant’s letter of appeal of Letter of Reprimand to Commander, Amphibious Group Two, recommending disapproval.

990616:	Commander, Amphibious Group Two denied Applicant’s appeal of NJP.

990616:	Commander, Amphibious Group Two denied Applicant’s appeal of Letter of Reprimand.

990702:	CO, USS TORTUGA, report of Applicant’s nonjudicial punishment and recommending he be required to show cause for retention and further advised.  Further advised that while he is not on a promotion list for LTJG, do not intent to promote him at his regular 0-2 promotion date.

990716:	Applicant’s statement regarding the nonjudicial punishment.

990928:	Commander, Amphibious Group Two, forwarded to CHNAVPERS the Applicant’s report of nonjudicial punishment and recommended Applicant be required to show cause for retention in the naval service. 

991108:	Commander, Naval Surface Force, recommending to CHNAVPERS that Applicant should be detached for cause, and he should be required to show cause for retention.  

000502:	CHNAVPERS recommended to the Secretary of the Navy that Applicant be discharged with a general (under honorable conditions) by reason of misconduct due to commission of a serious military or civilian offense.    

000524:	ASN (M&RA) approved the Applicant's discharge with a general (under honorable conditions).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20000630 with a general (under honorable conditions) for misconduct due to commission of a serious offense (A).  The Board presumed regularity in the conduct of governmental affairs (B).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

Issue 1.  When a Naval officer’s service has been honest and faithful, it is appropriate to characterize that service as honorable.  Characterization of service as general (under honorable conditions) is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The applicant’s service was marred by the award of nonjudicial punishment (NJP) for violations of the Uniform Code of Military Justice (UCMJ).  The applicant’s misconduct included provoking speeches or gestures, assault, fraternization and conduct unbecoming of an officer.  Separation under these conditions generally result in characterization of service under other than honorable conditions.  An upgrade to honorable would be inappropriate.  Relief is therefore denied.

The following is provided for the edification of the applicant.  There is no law or regulation, which provides that an unfavorable discharge may be upgraded, based solely on the passage of time or good conduct in civilian life subsequent to leaving naval service.  The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Secretary of the Navy Instruction 1920.6B (ADMINISTRATIVE SEPARATION OF OFFICERS), effective 13 December 1999 until Present establishes policies, standards and procedures for the administrative separation of Navy and Marine Corps officers from the naval service in accordance with Title 10, United States Code and DoD Directive 1332.30 of 14 March 1997.

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

PART IV - INFORMATION FOR THE APPLICANT

If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive.  You should read Enclosure (5) of the Directive before submitting such a complaint.  The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness.  You may view DoD Directive 1332.28 and other Decisional Documents by going online at "afls14.jag.af.mil".

The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
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