Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: jennifer.miles
Company: NCPB

Docket No. ND09-00763

ex-LT, USNR

Current Discharge and Applicant’s Request

Application Received: 20989217
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:  HONORABLE
		       Narrative Reason change to:  NONE REQUESTED

Summary of Service

Prior Service:
Inactive:	USNR	20031120 - 20040115	Active:	NONE
	USNR	20040116 - 20051005

Period of Service Under Review:
Date of Appointment:  20051006	Age at Enlistment:  37
Period of Enlistment:  Indefinite
Date of Discharge:  20080828	Highest Rank:  LT
Length of Service:  02 Year(s)   10  Month(s)   23 Day(s)
Education Level:  BA
Fitness Reports:  AVAILABLE 
Awards and Decorations (per DD 214):	NMCAM (2) NDSM GWOTSM

Periods of UA/CONF

NJP:  1
- 200800512:	Article 86 (Unauthorized absence –failure to go to appointed place of duty – Navy Medical Center, Bethesda)
	Article 92 (Failure to obey order or regulation)
	Article 107 (False official statements), 5 specifications
	Article 133 (Conduct unbecoming an officer and gentleman)
	Awarded: Punitive reprimand RESTR FOP  Suspended:  NONE

SCM:  NONE	SPCM:  NONE	CC:  NONE

Retention Warning Counseling:  NONE

20080509:	Applicant submitted a qualified resignation letter.
-

20080801:	Chief of Naval Personnel recommended to the Secretary of the Navy that the applicant resignation request be approved with characterization of service under other than honorable conditions.

20080801:	Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved applicant’s discharge by reason of misconduct, with characterization of service under other than honorable conditions.

20080828:	Applicant discharged this date.

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:  ☐

Pertinent Regulation/Law

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 5420.174D 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 (Failure to obey a lawful order), Article 107 ( False official statement, and Article 133 ( Conduct unbecoming an officer).

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

Applicant’s Issues

1.	The Commander, Naval District Washington was forced to deny him necessary medical, educational, and other benefits. 
2.	Was severely impacted by the lack of Direct Commission Officer (DCO) training. 
3.	In-service performance.
4.	Senior officers physically and emotionally abused him and never assisted him.
5.	Ineffective assistance of his military counsel.

Decision

Date:  20090820	DOCUMENTARY REVIEW	Location:  Washington D.C.	Representation:  Civilian Counsel

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

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted.  In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Applicant’s record of service included one non-judicial punishment (NJP) for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (Unauthorized absence), Article 92 (Failure to obey an order - he refused to cease wearing a superior rank when ordered to do so), Article 107 (False official statement - lied to several senior officers about his promotion and date of rank and falsely represented achievements, 5 specifications), and Article 134 (Conduct unbecoming an officer and a gentleman).  

Based on the offenses committed by the Applicant, his command preferred charges to a general court-martial.  Pursuant to a letter of 09 May 2008, the Applicant submitted a resignation for the good of the naval service to escape trial by a general court-martial and acknowledged the following: 1) he had been informed and understood that if his resignation was accepted, he would  subsequently receive a discharge under conditions other than honorable (OTH), 2) he could be deprived of substantial rights, benefits, and bounties, 3) he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received there from may have a bearing, 4) he was guilty of failing to go to his appointed place of duty, disobeying the lawful order of a senior officer by refusing to stop wearing a rank he was not entitled to wear, making false statements, and 5) as a part of his resignation he agreed to accept NJP.  

Additionally, the Applicant signed a Memorandum of Pretrial Agreement on 12 May 2008, which indicated the following: 1) in exchange for good consideration and after thorough consultation with his defense counsel, he fully understood and agreed to submit his resignation for the good of the service to escape trial by court-martial and appear at admiral’s mast on 12 May 2008, 2) he was satisfied with his defense counsel in all respects and considered him qualified to represent him in this matter, and 3) he entered this agreement freely, voluntarily and without anyone attempting to force or coerce him into making this agreement.  The Applicant’s request to resign and pre-trial agreement were forwarded to the Chief of Naval Personnel and the Applicant was subsequently permitted to resign with an OTH.  

The Applicant did not specifically identify his issues in writing on his DD Form 293.  Instead he marked “See Attached documents,” in  the comment section and included a personal statement and voluminous records such as a curriculum vitae/resume, correspondence to his counsel, character reference, memorandum of records, in-service records, and medical records.  Based on a review of the Applicant’s personal statement the Board identified the issues as noted above: 

Issue 1:  (Nondecisional). The Applicant contends the Commander, Naval District Washington was forced into denying him access to medical care, and that he was also denied a medical discharge, education and other benefits.  The NDRB determined there was no evidence in the record or presented by the Applicant to support the contention that he was denied medical care and 

benefits.  However, to the contrary, the Applicant has submitted voluminous medical records documenting his medical boards and numerous visits to military health care providers for treatment of his coronary artery disease, diabetes, hypertriglyceridemia, renal insufficiency, anemia, low back pain, gastroesophageal reflux disease, depression and other conditions.  More specific evidence includes the Applicant’s medical record of 18 July 2007, which indicates he was seen on numerous occasions for uncontrollable diabetes, repeated low blood pressure, and diabetic foot ulcers.  

The Applicant also submitted a special request chit of 16 May 2008, wherein he requested reconstructive surgery.  However, it was disapproved by the commanding officer (CO) who indicated the reason for disapproval was, “this is elective surgery.”  The NDRB determined the CO was acting within his authority and discretion when he disapproved a surgery that was not deemed an emergency or life sustaining procedure.

In response to the Applicant’s contention regarding a medical discharge, Department of Defense 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.

Furthermore, the NDRB determined the Applicant’s contention that he was denied educational and other benefits to be without merit since 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 basis of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

Issue 2:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  In seeking an upgrade to Honorable the Applicant contends he was never sent to DCO School and therefore, his ability to be a successful officer was severely impacted.
Based on a review of the record and evidence presented by the Applicant, the NDRB determined there was insufficient evidence to support this contention and that his alleged inability to attend DCO training does not mitigate or justify his misconduct.

Issue 3:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant also contends that during his first years as a reservist he received the highest ratings on fitness reports (FITREPs), was awarded Navy Achievement Medals for his actions, and always volunteered for assignments.  The Applicant submitted character statements, one “not observed” FITREP, and two unsigned FITREPS for the Board’s consideration.  The Applicant’s FITREP for the period of 27 December 2006 to 31 January 2008, was retrieved from the Bureau of Naval Personnel Online database and indicates the following: 1) the Applicant’s accountability was consistently below standards, 2) a loss of confidence in his trustworthiness led the commanding officer to recall him to NAF Washington, 3) he would consistently absent himself without supervisor approval, and 4) he was not recommended for retention or promotion.  The NDRB commends the Applicant for his service to our country and for volunteering to serve in Iraq.  However, the NDRB determined that his in-service performance was not sufficient to justify an upgrade based on the evidence of record as previously discussed.  

Issue 4  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends his commanding officer, and other officers harassed and degraded him on various occasions.  The Applicant also contends that he was physically and mentally abused in the following manner: 1) falsely imprisoned in a mental facility without just cause, 2) denied legal representation, 3) belittled and falsely accused, 4) personal property was stolen, 5) quarters were illegally searched, 6) his spouse was deceived into providing personal credit card information that was used against him, 7) entrapped and interrogated without cause, 8) intimidated and wrongfully denied funds, and 9) false charges were deliberately and maliciously filed against him.  The Applicant submitted several character references; some of the statements contained comments such as: 1) his commanding officer mistreated and abused him, 2) he was given a hard time and threatened with NJP, and 3) CAPT __ was ranting about how he did not know where [the Applicant] was at a standing morning report.  Based on a review of the evidence 

of record, the NDRB concluded that there was no evidence in the record and insufficient evidence (character statements) presented by the Applicant to support the contention that he was abused and harassed by officers.  The Board is opined that even if documentation could demonstrate that abuse and harassment did occur, it would not mitigate or justify the aforementioned misconduct to which the Applicant admitted guilt.

The Applicant has not submitted documentary evidence to support the contention that false charges were deliberately and maliciously filed against him.  However, the record of evidence reflects that charges were preferred against the Applicant and he voluntarily resigned to escape trial before a general court-martial and admitted guilt to the offenses as previously discussed.  Accordingly, the NDRB determined that the contention that false and malicious charges were filed against him is not supported by the evidence of record.

Issue 5:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant also contends he was ready to go to a court-martial to prove his innocence but was told that his conviction was a legal certainty and that he must plead to something.  The Applicant blames his Judge Advocate General (JAG), whom he wished had told him all of the options and ramifications before [he submitted his letter of resignation].  The Applicant’s contention is contradicted by the evidence of record as mentioned supra, which reflects that the Applicant voluntarily entered into a pretrial agreement, wherein he indicated that he was satisfied with his defense counsel in all respects, and had been fully advised of, understood and comprehended the meaning, effect and consequences of the agreement.  Therefore, the NDRB determined that an upgrade was not warranted based on the grounds of ineffective assistance of counsel.

Summary:  After a thorough review of the available evidence, to include the evidence submitted by the Applicant, Applicant’s summary of service, medical and service record entries, and discharge process, the Board found the discharge was proper and equitable.  Therefore, the awarded characterization of service shall remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain MISCONDUCT.

The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his discharge.  The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe 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:  After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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.  There are veterans organizations such as the American Legion and the Association of Service Disable Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade.  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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB.  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 NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the NDRB’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 BCNR can make changes to reenlistment codes.  Additionally, the NDRB 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended 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 BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.  

Post-Service Conduct:  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  Outstanding post-service conduct, 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, is considered during Board reviews.  Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle.   The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate  in-service misconduct was an aberration and not indicative of the member’s overall character.

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 NDRB 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 – Non-judicial punishment	SCM – Summary court-martial
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties
	CONF – Confinement	CC - Civilian conviction	CCU - Correctional Custody Unit	BW – Confinement on bread and water

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