Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: nuchy.garcia-anglin
Company: NCPB

Docket No. ND13-00039

ex-ENS, USNR

Current Discharge and Applicant’s Request

Application Received: 20121004
Characterization of Service Received:  (per DD 214) GENERAL (UNDER HONORABLE CONDITIONS)
Narrative Reason for Discharge:  (per DD 214) MISCONDUCT
Authority for Discharge:  (per DD 214) SECNAVINST 1920.6B

Applicant’s Request:	Characterization change to:	HONORABLE
	Narrative Reason change to:	CONVENIENCE OF THE SERVICE

Summary of Service

Prior Service:
Inactive: USN (ROTC)	19980810 - 20020523  COG	Active:	NONE

Period of Service Under Review:
Date of Appointment:  20020524	Age:  21
Years Contracted:  Indefinite
Date of Discharge:  20050430	Highest Rank:  ENS
Length of Service:  02 Year(s)   11  Month(s)   07 Day(s)
Education Level:  16	AFQT:  NFIR
Officer’s Fitness reports:  Available

Awards and Decorations (per DD 214):	Pistol SS MUC NDSM GWOTSM SSDR SWO

Periods of UA/CONF:  NONE

NJP:  1

- 20040511:	Article 90 (Assaulting or willfully disobeying a superior commissioned officer, to wit:  LT _____, Combat Systems Department Head, her superior commissioned officer, then known by the SNM to be her superior commissioned officer to “refrain from associating with enlisted while on liberty”; and “not to go out with anyone enlisted while on liberty,” or words to that effect, did at various locations and ports of call in the Western Pacific and while in Washington, on several occasions from on or about August 2003 to on or about 18 March 2004, willfully disobey the same)
	Article 133 (Conduct unbecoming an officer and a gentleman, to wit: by wrongfully going on liberty with FCC ______; wrongfully kissing FCC ______ in her work center; wrongfully sharing a hotel room with FCC ______; and wrongfully cohabiting with FCC ______, which conduct was to the disgrace of the armed forces, violating the high moral standards and customs of the Naval service and compromised the standing on the SNM as an officer and gentleman)
	Article 134 (General Article, 2 specifications)
	Specification 1:  Adultery, to wit:  SNM did at various locations and ports of call in the Western Pacific and while in Washington, on several occasions from on or about January 2003 to on or about 18 March 2004, wrongfully have sexual intercourse with FCC ______, a married man, not her husband.
	Specification 2:  Fraternization, to wit:  by wrongfully going on liberty with FCC ______; wrongfully kissing FCC ______ in her work center; wrongfully sharing a hotel room with FCC ______; and wrongfully cohabitating with FCC ______, in violation of the custom of the Naval Service of the United States that Officers shall not fraternize with enlisted persons on the terms of military equality.
	Awarded: Written Letter of Reprimand  Suspended:  NONE

SCM:  NONE	SPCM:  NONE	CC:  NONE	Retention Warning Counseling:  NONE

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:	☐	Rehabilitation/Treatment:	☐	Criminal Records:	☐
	Personal Documentation:	☒	Community Service:	☐	References:	☒
	Department of VA letter:	☐	Other Documentation:	☒
		Additional Statements:
	From Applicant:	☒	From/To Representation:	☐	From/To Congress member:	☐

Pertinent Regulation/Law

A.  Secretary of the Navy Instruction 1920.6B (ADMINISTRATIVE SEPARATION OF OFFICERS), effective 13 December 1999 until 14 December 2005 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 violations of the UCMJ, Articles 90, 133, and 134.

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

Applicant’s Issues

1.	The Applicant seeks to have DFAS cancel the amount she owes for her NROTC scholarship.
2.	The Applicant contends she was discriminated against because of her gender.
3.	The Applicant contends her commanding officer unduly influenced the investigation.
4.	The Applicant contends she was denied due process.
5.	The Applicant contends she was denied her rights under Part V of the Manual for Courts-Martial.
6.	The Applicant contends she received three Nonjudicial Punishments (NJPs) for the same alleged offenses.
7.	The Applicant contends she received punishment twice for the same alleged offenses.
8.	The Applicant contends her command made misrepresentations to Congressional inquiries.
9.	The Applicant contends she was not given a chance to recover.
10.	The Applicant contends personal and family issues led to her misconduct.
11.	The Applicant contends her in-service conduct warrants an upgrade.
12.	The Applicant contends her command violated the Federal Privacy Act by allowing non-authorized personnel access to her personnel records.
13.	The Applicant contends her post-service conduct warrants an upgrade.

Decision

Date:  20130719	DOCUMENTARY REVIEW	Location:  Washington D.C.	Representation:  Private representative

By a vote of 5-0 the Characterization shall remain GENERAL (UNDER 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 nonjudicial punishment (NJP) for violations of the Uniform Code of Military Justice (UCMJ): Article 90 (Assaulting or willfully disobeying a superior commissioned officer), Article 133 (Conduct unbecoming an officer and a gentleman), and Article 134 (General Article, 2 specifications: Specification 1: Adultery, wrongfully have sexual intercourse with a married man, not her husband and Specification 2: Fraternization).  Based on the offenses committed by the Applicant, her command sent a report of misconduct and detachment for cause to the Commander, Navy Personnel Command recommending that she show cause for retention before a Board of Inquiry.  On 04 January 2005, the Commander, Navy Personnel Command notified the Applicant of administrative separation processing.  The Applicant replied with her acknowledgment of rights desiring not to tender her resignation, and she submitted a written statement.  The Applicant was notified of separation proceedings for Misconduct and Substandard Performance of Duty.

Issue 1:  (Nondecisional)  The Applicant seeks to have DFAS cancel the amount she owes for her NROTC scholarship.  The NDRB has no authority to adjust the amount or terms of the Applicant’s monetary obligation.  Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.  The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 using DD Form 149.  Their website is http://www.donhq.navy.mil/bcnr/bcnr.htm.

Issue 2:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends she was discriminated against because of her gender.  In particular, she contends she was given unjust orders that others were not.  The NDRB is not an investigative body, however, the record clearly shows the Applicant filed an Inspector General complaint while in service with allegations of discrimination.  In addition, the Separation Authority was aware of these complaints prior to her discharge.  The NDRB is unable to establish this contention as a basis for mitigation or consideration as an extenuating circumstance and determined that relief is not warranted on this issue.  Relief denied.

Issue 3:  (Decisional) (Propriety)  RELIEF NOT WARRANTED.  The Applicant contends her commanding officer unduly influenced the investigation.  Specifically, the Applicant contends her commanding officer told the crew that she was removed pending charges of fraternization, which influenced the crew’s personal statements during the investigation.  The record contained no evidence of any wrongdoing by the Applicant’s commanding officer or anyone else in the discharge process.  However, the record clearly shows the Applicant “admitted to carrying on an intimate relationship with her Leading Chief Petty Officer” and “her conduct was prejudicial to good order and discipline” [extracted from Commander, Cruiser-Destroyer Group Three letter dated 27 September 2004].  The NDRB discerned no impropriety in the Applicant’s discharge process.  Relief denied.

Issues 4-5:  (Decisional) (Propriety)  RELIEF NOT WARRANTED.  The Applicant contends she was denied due process and was denied rights under Part V of the Manual for Courts-Martial.  The Applicant specifically contends that she was not allowed proper representation at her first NJP proceeding, no factual evidence was presented, only hearsay and voluntary statements that were false in content were given to the CO, and she was not allowed to bring witnesses who were on liberty or transferred to other units.  The Manual for Courts-Martial United States, Part V, indicates the rules of evidence, other than with respect to privileges, do not apply at NJP proceedings.  The record clearly shows the Applicant appealed her NJP, and Commander, Cruiser-Destroyer Group Three denied her appeal.  After an exhaustive review, the NDRB discerned no impropriety in the Applicant’s discharge process.  Relief denied.

Issue6-7:  (Decisional) (Propriety)  RELIEF NOT WARRANTED.  The Applicant contends she received three NJPs for the same alleged offenses.  The Applicant further contends she received punishment twice for the same alleged offenses, specifically, the Applicant contends she received letters of reprimand from both her XO and CO.  The Commanding Officer, USS INGRAHAM (FFG-61) endorsement letter dated 20 May 2004, states the Applicant received NJP on 15 April 2004 where no punishment was awarded.  The letter further states that after conferring with the Immediate Superior in Command and the General Court-Martial Convening Authority that a letter of reprimand should have been awarded to complete the NJP.  The letter of reprimand was signed by the Commanding Officer (Acting).  However, the Commanding Officer (Acting) did not complete a NAVPERS 1626/7, therefore, not completing the NJP.  The endorsement letter further states that the Applicant was notified that the NJP would be reconvened, the Applicant was awarded a letter of reprimand, and the previous letter of reprimand from the Commanding Officer (Acting) was vacated.  The Applicant appealed the NJP(s) on 28 April 2004 and 17 May 2004.  On 15 June 2014, the Commander, Cruiser-Destroyer Group Three denied the Applicant’s appeal(s).  The Commander, Cruise-Destroyer Group THREE determined that the Applicant was not subjected to multiple punishments for the same offenses and her rights were not materially prejudiced by the procedural errors that occurred.  Therefore, after reviewing the Applicant’s issues, supporting documents and the evidence of record, the NDRB discerned no impropriety or inequity and the Applicant’s separation for her misconduct was appropriate.  Relief denied.

Issue8:  (Decisional) (Propriety)  RELIEF NOT WARRANTED.  The Applicant contends her command made misrepresentations to congressional inquiries.  Specifically, the Applicant contends that her command provided falsified transcripts in response to congressional inquiries.  The Applicant notes that the NJP transcripts state that she incorrectly attended the University of Illinois vice Loyola University and Northwestern University.  The NDRB presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary.  The NDRB determined that the error in transcribing the Applicant’s university does not overcome the presumption of regularity nor does it invalidate the entirety of the transcripts.  Further, the record contained no evidence of any wrongdoing by the Applicant’s commanding officer or anyone else in the discharge process.  The NDRB discerned no impropriety or inequity and determined the Applicant’s discharge was proper and equitable.  Relief denied.

Issue9:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends she was not given a chance to recover.  The Applicant further contends per MILPERSMAN 1611-020, there was to be appropriate, documented counseling prior to initiation of discharge.  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.  The Applicant provided documents which she produced that outlined counselings from her commanding officer and executive officer; this documentation of counselings runs counter to her contention.  In addition, the Detachment for Cause letter dated 12 July 2004, describes multiple counselings that the Applicant received.  Regardless, the Separation Authority determines whether the allegations in the notification of the basis for separation are substantiated by the evidence.  The Applicant’s service included a nonjudicial punishment for violations of UCMJ Articles 90, 133, and 134.  These violations are considered serious offenses for which a punitive discharge is authorized.  The NDRB discerned no impropriety or inequity and the Applicant’s separation was appropriate.  Relief denied.

Issue10:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends personal and family issues led to her misconduct.  While the Applicant may feel that her personal and family issues were contributing factors to her misconduct, they do not mitigate her disobedience of the orders and directives that regulate good order and discipline in the Naval Service, demonstrating he was unsuitable for further service.  Relief denied.

Issue11:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends her in-service conduct warrants an upgrade.  The Applicant was administratively separated and not separated upon expiration of enlistment or fulfillment of service obligation.  The characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation.  Other considerations shall be given to the member’s length of service, grade, aptitude, and physical and mental condition.  Based on the Applicant’s record of service, the NDRB determined the Applicant’s service was honest and faithful but significant negative aspects of her conduct or performance of duty outweighed the positive aspects of her service record, and the awarded characterization of service was warranted.  Relief denied.

Issue12:  (Decisional) (Propriety)  RELIEF NOT WARRANTED.  The Applicant contends her command violated the Federal Privacy Act by allowing non-authorized personnel access to her personnel records.  The NDRB is not an investigative body, and allegations of violations of the Federal Privacy Act should be made to the Naval Inspector General’s Office.  The NDRB determined that this contention is not material to the Applicant’s discharge and it does form a basis for which relief may be granted.  Relief denied.

Issue13:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends her post-service conduct warrants an upgrade.  The NDRB considers 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.  The Applicant provided a well documented history of her post-service.  However, post-service conduct alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis.  The Board determined that the documentation submitted by the Applicant does not negate her significant in-service misconduct.  The characterization of service received was appropriate considering the length of service and UCMJ violations.  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, and discharge process, the Board found the discharge was proper and equitable.  Therefore, the awarded characterization of service shall remain GENERAL (UNDER 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 her discharge.  The Applicant is directed to the Addendum for additional information.

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 Disabled American 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 their opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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 	RESTR - Restriction	NJP - Nonjudicial 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	CBW - 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