Author: CAP
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Docket No. ND06-00270

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

FOR OFFICIAL USE ONLY

 ex-LT, USN
Docket No. ND06-00270

Applicant’s Request

The application for discharge review was received on 20051201.  The Applicant requests the Discharge 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.  In the acknowledgement letter, the Applicant was informed that he was approaching the 15-year point for review by this Board and was encouraged to attend a personal appearance hearing at the Washington Navy Yard, Washington, DC.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20061012.  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 Under Honorable Conditions (General) by reason of commission of a serious offense.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application: 

“My discharge was inequitable because it was based on one isolated incident in 21.5 years of service with no other adverse action.  The action I was charged with was false, based on the testimony of girlfriends of a poorly performing female sailor I refused to recommend advancement.  I accepted the discharge because I did not want to serve in a unit that allowed this type of actions.

My prior record stands for itself:

Promoted to CPO in seven years.
Sailor of the year USS New York City SSN696
Sailor of the year COMSUBGRUII.
Finalist for Sailor of the Year East Coast.
Selected for Nuclear Limited Duty Officer.
Nominated Hampton Roads Chamber of Commerce: Military Citizen of the Year.”

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 214 (Member 4)
Hampton Roads Chamber of Commerce, Norfolk Division, Armed Forces Committee, Military Citizen of the Year Nominee Certificate, dtd October 10, 1990

PART II - SUMMARY OF SERVICE

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

	Inactive: None
	Active:   USN	19690922 - 19760922	HON
	Active:   USN	19760923 - 19801130	HON
	Active:   USN	19801201 - 19840930	HON
	Active:   USN	19841001 - 19881101	HON

Period of Service Under Review:

Date of Commission:  19881102		Date of Discharge:  19910314

Length of Service (years, months, days):

	Active:    02  04  13  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Commission:  38

Type of Commission:  Regular (Indefinite)

Education Level:  13				

Highest Grade:  LT

Final Officer’s Fitness Reports were available to the Board for review.

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Three Good Conduct Awards, Two Meritorious Unit Commendations, Two Armed Forces Expeditionary, Two Battle Efficiency, Five Sea Service Deployment Ribbons, Submarine Dolphins, Two National Defense Service Ribbons, Pistol Expert, Rifle Expert, Navy Expeditionary Medal, Surface Warfare Officer, Navy Commendation Medal.

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

UNDER HONORABLE CONDITIONS (GENERAL)/MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE, authority:  NMPC LTR DTD 25FEB91 BUPER ORDER 0561/SECNAVINST 1920.6A ENCL 3 1.b(1).

Chronological Listing of Significant Service Events: 

881101:	Applicant accepts temporary appointment to the grade of Lieutenant.

881101:	Applicant, upon acceptance of appointment to Limited Duty Officer, agrees to remain on active duty for a period of not less than three (3) years prior to applying for retirement.

890403:	Applicant accepts appointment to the permanent grade of Lieutenant, with permanent grade date of 881101.

891109:	NJP for violation of UCMJ, Article 134 (3 specs):
	Specification 1: On or about 8904xx, at Chesapeake, Virginia, knowingly fraternize with SMSR J_ L. R_, USN, on terms of military equality by inviting her to a motel and spending some hours with her.
	Specification 2: On or about 8904xx, on board USS EMORY S. LAND (AS-39), knowingly fraternize with HM1 J_ K. T_, USN, on terms of military equality by asking her to be his social companion.
Specification 3: On or about 8904xx, on board USS EMORY S. LAND (AS-39), wrongfully communicate a threat to HM1 J_ K. T_, USN, to expose private information about her.
Additional Charge I: violation of UCMJ, Article 92: From on or about 8901xx to 8906xx violate a general regulation, to wit: Article 1131, U.S. Navy Regulations, by lending about $250.00 to HM1 J_ K. T_, USN.
Additional Charge II: violation of UCMJ, Article 134: From on or about 8806xx to 8906xx, wrongfully obtain personal information form the service record of HM1 J_ K. T_, USN, for personal purposes not related to the performance of his official military duties, said conduct being to the prejudice of good order and discipline.
	Award:  Restriction for 21 days, and Punitive letter of Reprimand.  [Extracted from Commanding Officer, USS EMORY S. LAND (AS-39)’s Report of Nonjudicial Punishment, dtd 900111].

891117:	Applicant submits appeal of nonjudicial punishment on the grounds that the punishment was disproportionate to the offenses.  Admits guilt to Additional Charge I, of Article 92 and Specifications 2 and 3 of Article 134.  Maintains innocence of Specification 1 of Article 134 and Additional Charge II, Article 134.  Requests that restriction in excess of 7 days be suspended.

891120:	Commanding Officer, USS EMORY S. LAND (AS-39), forwards Applicant’s NJP appeal to Commander, Submarine Squadron EIGHT, recommending denial.

891123:	Commander, Submarine Squadron EIGHT, denies Applicant’s NJP appeal.

891214:	Punitive Letter of Reprimand, dated 891207, delivered to Applicant.
	[Extracted from Commanding Officer, USS EMORY S. LAND (AS-39)’s Report of Nonjudicial Punishment, dtd 900111].

900109*:	Applicant submits statement concerning Punitive Letter of Reprimand for inclusion in service record. 
[*Applicant’s statement not dated.  Date of submission extracted from Commanding Officer, USS EMORY S. LAND (AS-39)’s Report of Nonjudicial Punishment, dtd 900111].

900111:	Commanding Officer, USS EMORY S. LAND (AS-39) submits Report of Nonjudicial Punishment to Commander, Naval Military Personnel Command via Commander, Submarine Squadron EIGHT, Commander, Submarine Group SIX and Commander, Submarine Force, U.S. Atlantic Fleet.  Commanding Officer’s comments:  “I consider (Applicant’s) actions and behavior to be outrageous and not those of an officer of the United States Navy.  I do not think he should be one.”

900112:	Commander, Submarine Squadron EIGHT, forwards Report of Nonjudicial Punishment to Commander, Naval Military Personnel Command via Commander, Submarine Group SIX and Commander, Submarine Force, U.S. Atlantic Fleet.  Makes no recommendation.

900123:	Commander, Submarine Group SIX, forwards Report of Nonjudicial Punishment to Commander, Naval Military Personnel Command via Commander, Submarine Force, U.S. Atlantic Fleet.  Makes no recommendation.

900202:	Commanding Officer, USS EMORY S. LAND (AS-39), requests that Applicant be detached for cause.  Commanding Officer’s comments:  I can no longer trust LT K_ (Applicant).  I can’t trust him to treat his subordinates impartially and lead them properly.  A significant portion of the crew are female; LT K_ (Applicant) has demonstrated clearly that he will treat those women on an other than military basis.  I can’t trust him to obey Navy Regulations and abide by military discipline when it does not suit him to do so.  He has violated Navy policies and regulations so old and consistent they are almost traditions.  Nor is reassignment an option since women are assigned throughout the ship and LT K_ (Applicant) has not limited his activities to his own division.  Doubt this deep is intolerable on board a Naval vessel.  I very respectfully request LT K_ (Applicant)’s detachment for cause.

900214:	Applicant endorses Request for Detachment for Cause.  Notes eligibility for normal transfer and opines that detachment for cause is an additional unnecessary method of degrading (Applicant).  Requests expeditious transfer to Norfolk Command.

900216:	Commander, Submarine Force, U.S. Atlantic Fleet, forwards Report of Nonjudicial Punishment to Commander, Naval Military Personnel Command.  Notes contents, makes no recommendation.

900227:	Commander, Submarine Squadron EIGHT, forwards Request for Detachment for Cause to Commander, Naval Military Personnel Command via Commander, Submarine Group SIX and Commander, Submarine Force, U.S. Atlantic Fleet, recommending detachment.

900405:	Commander, Submarine Group SIX, forwards Request for Detachment for Cause to Commander, Naval Military Personnel Command via Commander, Submarine Force, U.S. Atlantic Fleet, strongly recommending approval.  

900514:	Commander, Submarine Force, U.S. Atlantic Fleet, forwards Request for Detachment for Cause to Commander, Naval Military Personnel Command, recommending approval.  

900621:	Chief of Naval Personnel approves Commanding Officer, USS EMORY S. LAND (AS-39)’s request that Applicant be detached for cause.

901127:	Applicant verbally advised, in phone conversation with Chief of Naval Personnel (LT B_, PERS-822), of pending administrative separation processing.  Applicant agrees to waive right to administrative separation board and submit resignation request for General discharge with the understanding that Chief of Naval Personnel will approve Applicant’s immediate enlistment in Applicant’s highest enlisted grade contingent upon Applicant’s request for immediate transfer to the Fleet Reserve.
[Extracted from Chief of Naval Personnel ltr 1920 Ser 822/0237 dtd 910205, Subj:  LT T_ J. K_, (Applicant), USN, (SS# redacted) and Applicant Waiver of Rights, dated 910103.]  

910103:	Applicant submits Waiver of Rights.  Acknowledges understanding of being processed for involuntary administrative separation for cause based on misconduct as evidenced by nonjudicial punishment on 891109 for violations of the UCMJ, Articles 134 and 92; that the least favorable characterization of service that may be recommended by an administrative board is Other Than Honorable; that he could be processed in accordance with administrative board procedures; that if administratively separated he will not be eligible to request retirement; that he is not eligible to retire as an officer since he has not completed 10 years commissioned service; that since a permanent officer, he may not revert to prior enlisted status for the purpose of the requesting transfer to the fleet reserve; that the Chief of Naval Personnel will recommend approval of request for resignation with a General (Under Honorable Conditions) discharge and will approve immediate enlistment in Applicant’s highest enlisted grade contingent upon Applicant’s simultaneous submission for immediate transfer to the Fleet Reserve.  Applicant acknowledges having read and understood his rights in the separation process and, having conferred with counsel, elects to waive right to the administrative separation board procedure; to tender resignation in lieu of separation processing; to decline to make a statement; and to obtain copies of the papers to be forwarded to the Secretary of the Navy in support of the proposed action.  Applicant submits resignation request (dated 901215) as attachment to Waiver of Rights.  Acknowledges understanding that, if accepted, Applicant will receive a general discharge from the naval service.

910205:	Chief of Naval Personnel recommends that Secretary of the Navy accept Applicant’s resignation request and separate him from the Naval Service with a General discharge, with a separation code of BKQ (misconduct – commission of a serious offense). 

910212:	Assistant Secretary of the Navy (Manpower and Reserve Affairs) approves Chief of Naval Personnel recommendation to accept Applicant’s resignation request and separate him from the Naval Service with a General discharge, with a separation code of BKQ (misconduct – commission of a serious offense).

910314:	DD Form 214: Applicant discharged this date under honorable conditions (general) by reason of misconduct due to commission of a serious offense. 

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19910314 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of under honorable conditions (general).  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).  

The Applicant states his discharge was inequitable because it was based on one isolated incident in “21.5 years” with no other adverse actions.  The Applicant also denies culpability regarding the “action I was charged with.”  The Board noted that the Applicant had previously and appropriately received four honorable discharges for his honest and faithful service during the periods covered by those discharges.  The Board also noted, however, that for the period of service under review, the record clearly establishes that Applicant engaged in the misconduct for which he was discharged.  Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for fraternization, communicating a threat and violating a lawful general order or regulation.  Especially in the case of an officer, such conduct is a serious and intolerable breach of good order and discipline.  The Board noted that the Applicant, in his appeal of the nonjudicial punishment imposed on him, admitted culpability to 3 of the 5 allegations against him.  The Board found no evidence to suggest that Applicant’s admission of guilt, and his resignation request in which he acknowledged that he would receive a discharge characterized as general, was not freely and voluntarily offered.   Nor did the Board find any evidence that the findings of guilt on the offenses to which the Applicant denied culpability were improperly or inequitably determined.  The record indicates that the Applicant had ample opportunity to defend himself against the allegations.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable.  Relief denied.

The following is provided for the edification of the Applicant.  The NDRB has no authority to provide additional review of this case since Applicant’s discharge occurred more than 15 years ago.  The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

Pertinent Regulation/Law (at time of discharge)

A.  Secretary of the Navy Instruction 1920.6A (ADMINISTRATIVE SEPARATION OF OFFICERS), effective 21 November 1983 until 12 December 1999 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 15 October 1981.

B.  The Manual for Courts-Martial authorizes the award of confinement of six months or more if prosecuted under the Uniform Code of Military Justice (UCMJ) for violation of the UCMJ, Article 92 (Failure to obey order or regulation); Article 134 (Fraternization); and Article 134 (Threat, communicating). 

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

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