DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAVY ANNEX
WASHINGTON DC 20370-5100

WJH
Doc. No. 10370-08
12 August 2009

 

Dear ga

This is in reference to your application for correction of your
naval record pursuant to the provisions of 10 USC 1552.

A three-member panel of the Board for Correction of Naval Records,
sitting in executive session, considered your application on

5 August 2009. Your allegations of error and injustice were
reviewed in accordance with administrative regulations and
procedures applicable to the proceedings of this Board.

Documentary material considered by the Board consisted of your
application, together with all material submitted in support
thereof, your naval record and applicable statutes, regulations and
policies. The Board also carefully considered the advisory opinion
provided by the Navy Personnel Command letter 1920 SER 834/0 of

17 February 2009 (a copy of which was previously provided to you
through counsel) and your response to that advisory opinion.

After careful and conscientious consideration of the entire record,
the Board found that the evidence submitted was insufficient to
establish the existence of probable material error or injustice.
Accordingly, your application has been denied. The names and votes
o£ the members of the panel will be furnished upon request.

Your application initially requested, essentially, the following:
(a) that your education debt be set aside, (b) that block 23 of
your DD 214* be changed from “ADMINISTRATIVE SEPARATION DUE TO
MISCONDUCT” to “RESIGNED”, and (c) that block 24 of your DD 214 be
changed from “GENERAL” to “GENERAL (UNDER HONORABLE CONDITIONS)”.

* Certificate of Release or Discharge from Active Duty
Docket No 10370-08

You also requested a personal appearance before the Board. After
the Navy Personnel Command supported your request under “(b)” and
‘"*(c)” above, you added an additional request that (d) the
characterization of your discharge be upgraded to “HONORABLE” (vice
“GENERAL (UNDER HONORABLE CONDITIONS)”.

Prior to consideration of your request by the Board, the Navy
Personnel Command administratively corrected blocks 23 and 24 of
your DD 214 and administratively reissued a replacement DD 214.

A copy of the reissued DD 214 is attached. As you can see, block
23 was corrected to read “RESIGNED”, and block 24 was corrected to
read “GENERAL (UNDER HONORABLE CONDITIONS)”. Accordingly, the
corrections you sought in “b” and “c” above have been
administratively resolved by the Navy Personnel Command without the
need for action by this Board. The Board’s subsequent deliberation
and. determination pertain only to the remaining portions of your
request.

The Board members considered your request for a personal
appearance, however they found that the issues in the case were
adequately documented and that a personal appearance with or
without counsel would not materially add to the Board's
understanding of the issues involved. Thus, your request for a
personal appearance has been denied.

Regarding your remaining requests, the Board carefully considered
all of the arguments raised in your application and the evidence
you submitted regarding those claims. These arguments include, but
are not limited to, your claims that qq stalked and
harassed you, that your command failed to take appropriate measures
to stop her harassment, that your commanding officer prejudged you,
that you were intentionally isolated and treated with disdain, that
your conduct was influenced by alcohol and youth, that you lacked
sufficient power to avoid or address your situation, that your DUI
charge was a result of depression brought on by the above, that the
entries in block 23 and 24 were intentionally and deliberately made
to further punish you, that your command failed to adequately
comply with 10 USC 2005 (g) (2) by not advising you that you might
be subject to prorated repayment of the value of your education,
that the Navy erred by first issuing a NAVPERS 1070/613 and then
requiring that you show cause as to why you should be retained in
the Naval service, and that the Navy Personnel Command erred by
including a mention of the DUI arrest on a letter forwarding your
resignation request without first providing you an opportunity to
comment on, clarify or rebut that information.
Docket No 10370-0898

The Board was not persuaded by any of the arguments you made or the
evidence you submitted that your debt should be set aside or that
your discharge should be upgraded to a characterization of
“HONORABLE”. In making this determination, the Board noted the
following: You graduated from the Naval Academy in May 2004 after
receiving an advanced education at government expense. Upon
graduation, you were advised that you would be subject to
reimbursement of the value of the education if you failed to
complete the required period of active service either voluntarily
or due to misconduct. You were punished at nonjudicial punishment
in December 2005. You stated at the time that you had made a “very
terrible decision” and a “horrible mistake” and that you had been
“drinking (alcohol) more than you should have.” You did not appeal
the imposition of nonjudicial punishment. In August 2006, the Navy
Personnel Command directed that you show cause before a board of
inquiry (BOI) as to why you should be retained in the Naval
service. You were advised again, at that time, that separation
(either voluntary or due to misconduct) could result ina
reimbursement obligation. On 18 January 2007, rather than
appearing at the BOI, where you could have made many of the
arguments you are making to advocate for retention or for an
“Honorable” characterization of discharge, you submitted a
qualified resignation request. Your resignation letter
specifically noted that you understood that, if your resignation
was accepted you “shall subsequently receive a certificate of
general discharge” and that you “could be financially indebted to
the US Government based on (your) attendance at the United States
Naval Academy.”

The Board found that you were provided with a SLeae opportunity to
present your claims about the actions of 4 itt, 20d your
command to the BOI, which was scheduled for January 2007. However,
you knowingly, intentionally and voluntarily’ relinguished your
right to present these claims to the BOI by voluntarily submitting
a resignation request. You made a deliberate decision not to-
present these claims to the BOI. Under these circumstances, the
Board found that your present claims about the actions of
Lieutenant Davis and your command during the period leading up to
your resignation are insufficient to warrant any relief.

 

? In determining that your resignation was knowing, intelligent, and voluntary,

the Board considered the context in which your resignation was tendered. Your
request was submitted in January 2007. At the time, you had received four years
of training and education at the Naval Academy and had completed over 2.5 years
of active commissioned service. Your father was a senior Naval Officer and you
had the assistance of qualified legal counsel.
Docket No 10370-08

The Board also found no merit to your claim that your command
failed to adequately comply with 10 USC 2005(g) (2) by not advising
you prior to your non-judicial punishment that you may be subject
to recoupment. You were advised of this possible outcome in 2004,
well before you were even involved in any misconduct. You were
also advised of this possible outcome in August 2006, well before
you submitted your voluntary resignation request. Indeed, your
resignation letter itself stated that you understood that you
“could be financially indebted to the US Government based on (your)
attendance at the United States Naval Academy.” Your eventual
discharge was a direct result of your resignation request. Your
nonjudicial punishment may have had a role in triggering the
requirement that you show cause as to why you should be retained in
the Naval service. But you resigned before even appearing before
the BOI. Thus, the eventual outcome of the BOT cannot be known.
Your discharge and the resulting educational debt is more directly
related to your voluntary resignation than it is to your
nonjudicial punishment. Under these circumstances, the Board found
no merit to your argument that relief is warranted based on an
alleged failure to comply with 10 USC 2005(g) (2).

The Board also found no merit to your argument that relief is
warranted because the Navy Personnel Command erred by including a
mention of the DUI arrest when forwarding your resignation request
without first providing you an opportunity to comment. As stated
above, your resignation letter specifically noted that you
understood that, if accepted you “shall subsequently receive a
certificate of general discharge.” Your request was approved and
you received a “certificate of general discharge.” A
characterization of “Honorable” is reserved for discharges where
the quality of the member's service generally has met the standard
of acceptable conduct and performance for naval personnel. A
characterization of “general” is “granted to officers
administratively separated for causes wherein the cause for
separation or the previous record of the officer concerned is of
such a nature as to preclude honorable discharge but is not of such
a nature as to require discharge under conditions other than
honorable, for example: (1) Acceptance of qualified resignations.”
The Board found that the quality of your service, as measured by
your conduct and performance, even without mention of the DUI
arrest, more closely approximates the description associated with a
“general” characterization of service. Accordingly, to the extent,
if any, the Navy Personnel Command erred (by mentioning your DUI
Docket No 10370-08

arrest), such error was harmless as you have shown insufficient
evidence of prejudice.

For the foregoing reasons, your application has been denied. You
are entitled to have the Board reconsider its decision upon
submission of new and material evidence or other matter not
previously considered by the Board. In this regard, it is
important to keep in mind that a presumption of regularity attaches
to all official records. Consequently, when applying for a
correction of an official naval record, the burden is on the
applicant to demonstrate the existence of probable material error
or injustice.

Sincerely, {
W. DEAN PF
Executive Dalvie ¢
Enclosures:
(1} DD 214 of 7 July 2009
5