ex-LT(JG), USN

Current Discharge and Applicant’s Request

Application Received:  20080515
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  SECNAVINST 1920.B/191142ZNOV04

Applicant’s Request:  Characterization change to:  
		       Narrative Reason change to:  Reduction in force or Completion of Required Active Service

Summary of Service

Prior Service:
Inactive: USNR (DEP)	19851210 - 19860127  		Active:     19860128-19900126
								                           19971101-20010509
Period of Service Under Review:
Date of Enlistment: 20010510	Period of Enlistment:  Years   Extension	Date of Discharge: 20041231
Length of Service:  Years     Months   22 Days	Education Level: 	Age at Enlistment: 	AFQT: 81
Highest Rank/Rate: 	LT (JG)	Evaluation Marks: Performance:	3.4 (5)	Behavior: 4.4 (5)	OTA: N/A
Awards and Decorations (per DD 214):  Pistol , , , , ,  

Periods of UA/CONF: 

NJPs:  
20040612:  Article 92 (Failure to obey an order)
                   Awarded:    Suspended:   

SCMs:       SPCMs:       CC:       Retention Warnings:  

Types of Documents Submitted/reviewed

Related to Military Service:	
                                         DD 214:  	 Service/Medical Record:  		  Other Records:  

Related to Post-Service Period:	
	Employment:			Finances:			Education/Training:	
	Health/Medical Records:		Substance Abuse:			Criminal Records:	
	Family/Personal Status:		Community Service:		References:		
              Additional Statements:
                             From Applicant:  	From Representation:         	From Congress member:    

              Other Documentation (Describe):  

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 25 April 2005, Article 1910-142, SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B.  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 V, Para 502, Propriety and Para 503, Equity.

C.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 92.

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

Applicant’s Issues

1.  Reenlistment opportunity.
2.  Isolated incident.
3.  Unfair discharge process.

Decision

Date:  20081009		Location:  Washington D.C.	Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  MISCONDUCT.

Discussion

:   either  which the Board cannot form the basis of relief for the Applicant, or  the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum, specifically the paragraph concerning s, regarding .

Issue 2:  (Equity)  RELIEF NOT WARRANTED.  The Applicant stated her discharge was based on one isolated incident.  Despite a service member’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.  For the information of the Applicant, an administrative discharge is not punishment. The decision to administratively discharge a service member is made independently of and does not require adjudication at court-martial or non-judicial punishment.  The characterization of service is a description of the total service provided during the member’s enlistment.  

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Applicant’s service was marred by her violation of the Uniform Code of Military Justice (UCMJ):  Article 92 (Failure to obey an order) which constitutes the “commission of a serious offense”, the discharge basis in this case.  This specific violation is punishable by a dishonorable discharge and up to 2 years of imprisonment if adjudicated and awarded as part of a sentence by a special or general Court- Martial.  The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant’s  failure to meet the requirements of a Naval officer.  The Board determined an upgrade would be inappropriate. 

Issue 3:  (Equity)  RELIEF NOT WARRANTED.  The Applicant implies she was treated unfairly by her command because she was not entitled to an administrative separation board and her punishment was more harsh than a senior officer who the Applicant states was involved in similar misconduct.   The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support her issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention the command treated her unfairly.   

The Applicant has requested an upgrade in her characterization of service to “Honorable”.  When the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under “Honorable” conditions.  A “General (Under Honorable Conditions)” is appropriate if the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance outweighs positive aspects of the member’s military record.   The Board determined the nature of the UCMJ violation is a significant negative aspect of the member’s conduct and the awarded characterization was appropriate; an upgrade would be inappropriate. 

For the edification of the Applicant, the NDRB does not have the authority to change a narrative reason for separation to “Reduction in Force” or “Completion of EAS” as requested.   In the Applicant’s case the separation process was in strict 

compliance with the Naval Military Personnel Manual.  The Applicant was properly processed for separation by reason of misconduct due to the commission of a serious offense.  The summary of service clearly documents the Applicants violation of 
UCMJ Article 92 (Failure to obey an order).  As stated above, a violation of UCMJ Article 92 constitutes the “commission of a serious offense” which could be punishable by a punitive discharge and confinement.  The separation authority directed that that Applicant be discharged by reason of misconduct.  No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged.  

After a thorough review of the available evidence, to include the Applicant’s Summary of Service,   Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found 

ADDENDUM:  Information for the Applicant

Complaint Procedures:  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 to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC  20301-4000.  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.”

Additional Reviews:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the 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.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

Employment/Educational Opportunities:  The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.

Reenlistment/RE-code:  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.

Medical Conditions and Misconduct:  DoD disability regulations do not preclude a disciplinary separation.  Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons.  Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record.  Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or other medical related reasons.  Only the Board for Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - 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 may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.

Issues Concerning Bad-Conduct Discharges (BCD) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief.  With respect to a discharge adjudged by a special court-martial, the action of the NDRB is restricted to upgrades based on clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership:  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