Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: janet.goode
Company: NCPB

Docket No. ND08-01407

ex-ENS, USN

Current Discharge and Applicant’s Request

Application Received:  20080818
Characterization of Service Received:  UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge:  MISCONDUCT
Authority for Discharge:  SECNAVINST 1920.6B

Applicant’s Request:  Characterization change to:  GENERAL (UNDER HONORABLE CONDITIONS)
		       Narrative Reason change to:  NONE REQUESTED

Summary of Service

Prior Service:
Inactive: USN (US Naval Academy)   Start date NFIR - 20040527  COG		Active:  NONE

Period of Service Under Review:
Date of Appointment:  20040528	Years Contracted:  6 Years  0 Months	Date of Discharge:  20070131
Length of Service:  02  Years  08  Months   04  Days	  Education Level:  16	Age at Enlistment:  21
Highest Rank:  ENSIGN	Officer’s Fitness reports:  All officer performance reports were available tothe Board for review.
Awards and Decorations (per DD 214):  NONE
						
						Discharge Process

20060525:  NJP Violation of UCMJ Article 92 (Failure to obey order or regulation)
			 Article 133 (Conduct unbecoming and officer and gentleman)
			 Article 134 (Pandering and prostitution)
 Awarded:  FOP $1200 for 2 months; Reprimand; Restriction for 30 days

20060525:  Commander, Amphibious Group Three endorsed Report of NJP and provided copy to Applicant for comment.

20060525:  Commander, Amphibious Group Three forwarded Report of Misconduct to Commander, Naval Personnel
                   Command recommending Applicant show cause for retention.

20060814:  Commander, Naval Personnel Command, notified Applicant of requirement to show cause.

20060921:  Applicant submitted a resignation for the good of the service.

20061106:  Commander, Naval Personnel Command, recommended to the Assistant Secretary of the Navy (Manpower and
                    Reserve Affairs) that Applicant's resignation request be approved, with characterization of service as “Under Other
                    Than Honorable Conditions”
                
Undated:  Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved Applicant’s discharge by reason of 
                Misconduct, with characterization of service as “Under Other Than Honorable Conditions”.

20070131:  Applicant discharged.			

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:	☐

Related to Post-Service Period (cont):

	Family/Personal Status:	☐	Community Service:	☐	References:		☐
              Additional Statements:
                             From Applicant:  ☐	From Representation:         ☐	From Congress member:    ☐

              Other Documentation (Describe):  ☐

Pertinent Regulation/Law

A.  Secretary of the Navy Instruction 1920.6C (ADMINISTRATIVE SEPARATION OF OFFICERS), effective 15 December 2005 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 5420.174D 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, Articles 92, 133, 134.

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

Applicant’s Issues

1.  Rejoin the Navy.
2.  Did not have a fair trial.
3.  Insufficient representation by legal officer.

Decision

Date:  20081023	DOCUMENTARY REVIEW	Location:  Washington D.C.	Representation:  NONE

By a vote of 5-0 the Characterization shall remain UNDER OTHER THAN HONORABLE CONDITIONS.
By a vote of 5-0 the Narrative Reason shall remain MISCONDUCT.

Discussion

Issue 1:  This is either an Issue which the Board cannot form the basis of relief for the Applicant, or one 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 Reenlistment/RE Codes, regarding this Issue.

Issue 2:  (Equity)  RELIEF NOT WARRANTED.  The Applicant contends he is entitled to an upgrade of his discharge because 
he did not get a fair trial and was not guilty of all the charges against him.  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 record of service was marred by a NJP for violations of the Uniform
Code of Military Justice (UCMJ):  Articles 92 (Failure to obey order or regulation), Article 133 (Conduct unbecoming and 
officer and gentleman), and Article 134 (Pandering and prostitution).  Violations of Article 92, Article 133, and Article 134 are 
considered serious offenses, punishable by punitive discharge and confinement if adjudicated and awarded as part of a 
sentence by a special or general court-martial.  The Command did not pursue a punitive discharge but opted instead for an 
administrative discharge.  

The NDRB noted the Applicant voluntarily waived his right to consult with a lawyer and accepted non-judicial punishment
on 15 May 2006.  By accepting NJP the Applicant lost the right to trial by court-martial where the burden of proof of 
misconduct is much higher and the ability to mount a defense is substantially greater.  If the Applicant felt at the time he was 
not guilty of the charges against him, he should have refused non-judicial punishment and demanded trial by court-martial.  
The NDRB determined an upgrade would be inappropriate.

Issue 3:  (Equity)  RELIEF NOT WARRANTED.  The Applicant contends he did not receive adequate legal assistance from his military lawyer, specifically he does not feel as if he got “a fair shot at staying.”  The NDRB noted on 14 September 2006 the Applicant voluntarily waived his right to a Board of Inquiry, where he would have been given the opportunity to state his case for retention in the naval service.  The Applicant voluntarily requested to resign his commission on 21 September 2006.  The NDRB determined an upgrade would be inappropriate.

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

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 or for any basis wherein an Other Than Honorable Discharge is authorized, 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

Key:	NFIR - Not Found In Record 	UA – Unauthorized absence	NJP – Nonjudicial punishment	SCM – Summary court-martial
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties
	CONF – Confinement		B&W – Confinement on bread and water			CC - Civilian conviction

Key:	NFIR - Not Found In Record 	UA – Unauthorized absence	NJP – Nonjudicial punishment	SCM – Summary court-martial	
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties 
	CONF – Confinement		B&W – Confinement on bread and water