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Docket No. ND06-00913

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

FOR OFFICIAL USE ONLY

ex-LT, USN
Docket No. ND06-00913

Applicant’s Request

The application for discharge review was received on 20060628.  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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20070329.  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) by reason of misconduct commission of serious offense.

PART I - ISSUES AND DOCUMENTATION

Decisional Issues

Equity:  Characterization of service not warranted by overall service record
	 Post-service equity mitigates characterization of service

Documentation

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

Applicant’s DD Form 214 for period ending August 31, 1998 (Service 7) (2)
Report of Separation and Record of Service Army National Guard of Virginia (2)
Applicant’s DD Form 214 for period ending June 1, 2004 (Service 4)
Letter from Congressman R_ B_, dtd June 15, 2006
Applicant Letter, dtd July 24, 2006
Army Commendation Medal Certificate
Applicant Evaluation Report for period June 2004 – September 2004 (2 pages)
Applicant Evaluation Report for period August 2005 – March 2006 (2 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (NROTC)	19840815 - 19881217	COG
	Active:    None

Period of Service Under Review:

Date of Commission:  19881218		Date of Discharge:  19980831

Length of Service (years, months, days):

	Active:    09  08  14  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Commission:  23

Type of Commission:  Regular (Indefinite)

Education Level:  16				Degree:  Bachelor

Highest Grade:  LT

Applicant’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):  Sea Service Deployment Ribbon (3), Joint Meritorious Unit Award, Navy “E” Ribbon, USCG Unit Commendation, Humanitarian Service Medal, Armed Forces Expeditionary Medal (2), Navy Reserve Sea Service Deployment Ribbon, Armed Forces Service Medal, USCG Meritorious Unit Commendation, Navy Achievement Medal

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE, authority:  SECNAVINST 1920.6A.

Chronological Listing of Significant Service Events: 

881218:	Applicant commissioned as an Ensign in the United States Navy.

901218:	Applicant promoted to the grade of Lieutenant (junior grade).

930101:	Applicant promoted to the grade of Lieutenant.

970724:	NJP for violation of UCMJ, Article 92: On 970630 fail to obey a lawful general regulation, Department of Defense Regulation 5500.7-R, dated 30 August 1993, Joint Ethic Regulation, for the wrongful use of a government communications system by sending obscene email to M_ S_.
Violation of UCMJ, Article 133: Conduct unbecoming an officer and gentleman on 970630 by sending obscene email to M_ S_, to the disgrace of the armed forces.
Violation of UCMJ, Article 134: On 970630 communicated indecent language to M_ S_.
	Award:  Punitive letter of reprimand.  Not appealed.

970724:	Applicant served with Punitive Letter of Reprimand by Commander, Regional Support Group, Norfolk.

970805:	Applicant’s submitted statement for inclusion in service record regarding Punitive Letter of Reprimand.  

970805:	Commander, Regional Support Group, Norfolk, forwarded Report of Nonjudicial Punishment to Chief of Naval Personnel, recommending that Applicant be required to show cause for retention in the naval service.

971107:	Chief of Naval Personnel notified Applicant of requirement to show cause.
	[Extracted from Chief of Naval Personnel recommendation to Secretary of the Navy, dated 980224.]

980109:	Applicant submitted qualified resignation in lieu of further show cause proceedings.
	[Extracted from Chief of Naval Personnel recommendation to Secretary of the Navy, dated 980224.]

980224:	Chief of Naval Personnel recommended that Secretary of the Navy accept Applicant’s qualified resignation request and that Applicant be separated with a characterization of service as General (Under Honorable Conditions) and a separation code of BKQ, misconduct – commission of a serious offense.  

980310:	Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved Applicant’s qualified resignation request and discharge by reason of misconduct - commission of a serious offense with a characterization of service as General (Under Honorable Conditions).

Service Record Book contains a partial Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19980831 by reason of misconduct - commission of a serious offense (A) with a service characterization of general (under honorable conditions).  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 (B and C).  The Board presumed regularity in the conduct of governmental affairs (D).

The record demonstrates that the Applicant committed the misconduct for which he was ultimately separated.  The Applicant acknowledged at the time committing the misconduct, and does not deny it to the NDRB.  The decision to require the Applicant to show cause for retention as a result of his misconduct is not punishment, nor is characterization of service.  Therefore, the Applicant was not exposed to double jeopardy nor punished more than once for his misconduct.  The decision that Applicant should be required to show cause was not within the purview of his local command, though it did recommend that such action be taken.  Therefore, the mere fact that the administrative processing of the Applicant’s case from imposition of NJP to date of discharge took approximately one year is, of itself, not relevant to the severity of the Applicant’s offense.  The record indicates that proper procedures were followed in Applicant’s case, and the Board found no impropriety in the decision to accept the Applicant’s own tendering of a qualified resignation, which by definition acknowledged the possibility of a characterization of service as general (under honorable conditions).  Relief is not warranted.

Regarding characterization of service, a general discharge 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 a nonjudicial punishment proceeding for violations of Articles 92, 133 and 134 of the UCMJ.  The NDRB advises the Applicant that certain serious offenses warrant separation from the Navy in order to maintain proper order and discipline.  The Applicant’s misconduct is considered serious, for which dismissal is authorized if adjudged at a general court-martial.  The gravity of the Applicant’s misconduct is not only enhanced by his status as an officer, but further aggravated by its unseemly nature and tendency to draw disgrace and ridicule upon himself and the naval service.  Relief is not warranted.

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety or inequity after a review of Applicant’s case.  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 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 provided evidence of his commendable performance and honorable service in the Army National Guard.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge under review was appropriate and that the evidence of post-service conduct was found not to mitigate the conduct which precipitated the discharge.  Relief denied.

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 additional evidence related to this discharge.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Secretary of the Navy Instruction 1920.6A (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.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

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

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.

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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 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