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NAVY | DRB | 2004_Navy | ND04-00867
Original file (ND04-00867.rtf) Auto-classification: Denied


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

ex-LT, MSC, USNR
Docket No. ND04-00867

Applicant’s Request
The application for discharge review was received on 20040503. The Applicant requested the characterization of service received at the time of discharge be changed to honorable. The Applicant requested a personal appearance discharge review before the Board in the Washington National Capital Region. The Applicant did not designate a representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Board first conducts a documentary record review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041029. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: SECNAVINST 1920.6B.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“1. My discharge was improper because it was based on an unlawful condition in a pre-trial agreement in connection with non-judicial punishment (Captain’s Mast).

2. My discharge was improper because the only evidence of my alleged conduct unbecoming an officer (ART. 133, UCMJ) was based on an unwarned interview by NCIS in violation of Art. 31, UCMJ.)

3. My discharge was inequitable because it failed to consider my record of service and future potential and the mitigating circumstances regarding my involvement with LT B_.”

(Applicant attached further explanation and history of the case, which is listed in the documentation section.)

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s explanation of events (3 pages)
 Applicant’s Appointment as Head, Preventive Medicine Dept, Naval Hospital, Bremerton, WA, dtd Apr 24, 1998
 Letter of Recommendation addressed to President, Fiscal Year 1999 Medical Service Corps Lieutenant Special Promotion Selection Board, Bureau of Naval Personnel,
dtd Dec 23, 1998
 Copy of DD Form 214 (Member – 1)
 Applicant’s Record of Captain’s Mast (8 pages)
Applicant’s Punitive Letter of Reprimand, dtd Oct 19, 2000 (3 pages)
Applicant’s Voluntary Resignation Request, dtd Oct 21, 2000
Memorandum of Agreement for Nonjudicial Punishment/Stipulation (8 pages)
Applicant’s Appeal of nonjudicial punishment, dtd Oct 29, 2000 (3 pages)
Performance Evaluations (5 evaluations)
IG Report of Navy Hotline Complaint (45 pages, including performance evaluations)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: None
         Active: None

 Period of Service Under Review :
Date of Commission: 970801      Date of Discharge: 010531

 Length of Service (years, months, days):

         Active: 03 07 00
         Inactive: 00 03 04

 Age at Entry: 35                          Years Contracted: 8

 Education Level: 16     

Highest Rank: LT

 Final Officer Performance Evaluation Averages : All officer performance reports were available to the Board for review.

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, OSR, AFEM

 Days of Unauthorized Absence: None

 Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: SECNAVINST 1920.6B.

 Chronological Listing of Significant Service Events :

001019:  NJP for violation of UCMJ, Article 133: Conduct unbecoming an officer and a gentleman, to wit: participating in an extortion scheme involving American patronage of the Hard Rock Café.
         Award: Punitive Letter of Reprimand.
001019:  Punitive Letter of Reprimand issued to Applicant.

 001021:  Applicant request for qualified resignation. [EXTRACTED FROM APPLICANT’S SUBMITTED DOCUMENTATION.]
001029:  Applicant appealed nonjudicial punishment and the letter of reprimand.

001119:  Appeal denied.

 001120:  Commanding Officer, U.S. Naval Support Activity, Bahrain, forwarded to BUPERS, via Commanding Officer, U.S. Naval Forces Central Command, the report of Applicant’s nonjudicial punishment imposed for conduct unbecoming an officer and gentleman and as a result, he was awarded a punitive letter of reprimand. Applicant did appeal but was denied.
001205:  Applicant’s statement of response to denial of his appeal of nonjudicial punishment and letter of reprimand.
001220:  Commanding Officer, U.S. Naval Forces Central Command, letter of endorsement, forwarded the report of Applicant’s nonjudicial punishment to BUPERS, and advised BUPERS, pursuant to a Pretrial Agreement, to which Applicant voluntarily agreed and signed, submitted a Qualified Resignation Request on 21 October 2000. (This is being forwarded by separate correspondence now that the nonjudicial punishment process has concluded). And it is not necessary to convene a Show Cause Board in this case, unless the officer’s resignation request is disapproved.

010208:  BUPERS recommended to the Secretary of the Navy that Applicant's request for resignation to avoid initiation of administrative separation processing, be approved and the Applicant be discharged with a General (Under Honorable Conditions) by reason of misconduct due to the commission of a serious offense.

010416:  Office of Assistant Secretary of the Navy approved discharge.

010531:  Applicant discharged with a General (Under Honorable Condition) by reason of misconduct due to commission of serious offense. Applicant refused to sign DD 214 at time of separation due to incorrect information.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010531 with a General (Under Honorable Conditions) for misconduct due to commission of a serious offense (A). The Board presumed regularity in the conduct of governmental affairs (B). After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C, D and E).

Issues 1 & 2: The Applicant’s discharge characterization accurately reflects his service to our country. The discharge was proper and equitable. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service. The Applicant, after being advised he had the right to refuse imposition of nonjudicial punishment, elected to accept nonjudicial punishment. There is no evidence the Applicant was denied due process or that his rights against self-incrimination were violated. Additionally, he voluntarily tendered a qualified resignation request on 21 October 2000. The NDRB recognizes that serving in the United States Navy is very challenging. Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve our country. While the NDRB respects the fact the Applicant had served without incident or counseling for 28 months, his service is equitably characterized as being performed as general under honorable conditions. Relief is not warranted.

Issue 3: The Applicant states, his discharge “was inequitable because it failed to consider (his) record of service and future potential and the mitigating circumstances (of his) involvement” in the misconduct, which resulted in his discharge. There is credible evidence in the record the Applicant “participat(ed) in an extortion scheme involving American patronage of the Hard Rock Café,” a charge the Applicant plead guilty to during his nonjudicial punishment (NJP). Normally, to permit relief, an error or injustice must have existed during the period of service in question. No such error or injustice occurred during the Applicant’s service in the Navy. His service record is marred by the awarding of NJP for conduct unbecoming an officer and a gentleman; thereby, substantiating his misconduct . It must be noted most naval officers serve honorably earning an honorable discharge. In fairness to those members of the naval service, commanders and separation authorities are tasked to ensure the undeserving receive no higher a service characterization than is due. The Applicant’s record of service and accomplishments does not mitigate his misconduct to the degree that would warrant an upgrade of his service characterization. An upgrade to honorable conditions would be inappropriate. Relief denied.

T here 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 the service. However, the NDRB is authorized to consider outstanding 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. Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge. Evidence of continuing educational pursuits, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct. At this time, the Applicant has not provided documentation of his post-service good character and conduct to mitigate his misconduct while on active duty.
 
The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge. The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Representation at a personal appearance hearing is recommended but not required .

 Pertinent Regulation/Law (at time of discharge)

 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 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

E. In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 133, Conduct unbecoming an officer and a gentleman, if adjudged at a Special or General Court Martial.

PART IV - INFORMATION FOR THE APPLICANT
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 Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive. You should read Enclosure (5) of the Directive 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 Directive 1332.28 and other Decisional Documents by going online at " afls14.jag.af.mil ".

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:

                  Naval Council of Personnel Boards
                  Attn: Naval Discharge Review Board
                  720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023      



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