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NAVY | DRB | 2005_Navy | ND0501549
Original file (ND0501549.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-LCDR, USNR-R
Docket No. ND05-01549

Applicant’s Request
The application for discharge review was received on 20050920. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. The Applicant requests a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20060721. After a thorough review of the available 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) by reason of misconduct due to commission of a serious offense.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application and in an attached letter/document to the Board:

“Overall Applicant’s fitness reports warrant an Honorable Discharge and such was recommended through the chain of command up to receipt by Chief of Naval Personnel”

 “Subject member received a Letter of Reprimand pursuant to an Article 15 proceeding on 92Dec19, and resigned his commission in lieu of administrative separation. Subject member’s Commanding Officer, as well as all subsequent endorsements through the chain of command until receipt by Chief of Naval Personnel, recommended that subject member be issued an Honorable Discharge. Separation Order dated 93Jul13, however, characterized service as General under Honorable Conditions.

The Article 15 proceeding above mentioned was an isolated incident. Subject member, throughout his naval career, only received one derogatory fitness report; and that was pursuant to separation. Overall, subject member’s record, as evidenced by all of his fitness reports, and the totality of service, as was at the time recognized by all intermediate endorsements to his letter of resignation, was well above that statutorily required for an Honorable Discharge.

Subject member respectfully requests that his discharge dated 93Jul13 be recharacterized from General under Honorable Conditions to Honorable.
[signed]
LCDR. J_ H_(Applicant)
(social security number deleted)”
Documentation
In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:
Six pages from Applicant’s service record
Letter from Applicant, dtd October 10, 2005
Discharge certificate, dtd July 13, 1993
Affidavit from Applicant, dtd October 10, 2005
Florida bar member search, retrieved October 9, 2005
Affidavit from Applicant’s father, dtd October 10, 2005
 The Joy of Practicing Under the Civil Law and Anglo-American Common Law Systems by Jorge Hevia, Jr. [Applicant’s father], copyright 2005

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
[EVALUATE ON CASE BY CASE BASES]

          Inactive: USNR (DEP)     19800515 - 19800605      COG (Enlisted)
          Active: USNR     19800606 - 19800929      HON (Enlisted)
         USNR    19800930 - 19830331      HON (Officer)

 Period of Service Under Review :
Date of Commission: 19800930             Date of Discharge: 19930713

 Length of Service (years, months, days):

         Active: None
         Inactive: 10 03 12

 Time Lost During This Period (days):
         Unauthorized absence: None
         Confinement:              None

 Age at Commission: 22

 Type of Commission: Reserve (19800930)

 Education Level: 16                                 Degree : AB in History
Highest Grade: LCDR

 Eleven fitness reports for the period in review were available to the Board for review.

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): None


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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: SECNAVINST 1920.6A .
Chronological Listing of Significant Service Events :

861018:  Applicant found physically qualified to affiliate with USNR.

920424:  Applicant commenced annual training on USS RACINE.

920925:  Report of Investigation into incident during the 8-9 May 92 period at Long Beach, CA: Applicant was found aboard USS RACINE laying on his back outside a head with uniform in disarray. Applicant was then transported to the Long Beach Naval Hospital. Blood alcohol level was .34. Applicant admitted to Intensive Care Unit. In the presence of the Applicant, the Commanding Officer, USS RACINE, placed an SF 513 in the Applicant’s medical record. Commanding Officer directed Applicant to show it to his command upon return from AT. Upon completion of the AT, the Applicant returned his medical record to NMCRRC Miami and the Applicant’s SF 513 was noted missing.

921104:  Commanding Officer, Naval and Marine Corps Reserve Center, Miami, FL, recommended to Bureau of Naval Personnel the Applicant’s administrative separation due to behavioral shortcomings that are unacceptable for a line officer. Additional comments: “Lieutenant Commander H_ [Applicant] was informed by LCDR O_ on 24 October 1992 that he would be taken to Article 15 proceedings (mast) on 25 October 1992 for the charges contained in enclosure (1) [LCDR S. A. O_, JAGC, USNR ltr of 25 Sep 92]. He departed the Saturday drill period at the final muster and then improperly attempted to obtain an excused absence from Sunday, 25 October 1992 drills by calling in to the Reserve Center’s duty petty officer stating that he had to “go away for business in the Carolinas”... [Applicant’s] actions are evaluated as being a subterfuge to avoid possible disciplinary actions.... Calls to his telephone number are met with a recording and he is presently in unsatisfactory participation status in the Naval Reserve. It is anticipated that further attempts to bring him to an Article 15 proceeding will be futile. Applicant had long been suspected of having an alcohol problem by his superiors at this Reserve Center. In February 1992 he attended a civilian alcohol rehabilitation program. In May 1992 he performed Annual Training (AT) aboard USS RACINE and experienced a severe alcohol related incident. Upon his departure from the ship he was counseled by the ship’s Commanding Officer and the CO placed a SF-513 in his medical record reporting his medical consultation for suspected alcohol abuse. Upon his return to this Reserve Center this SF-513 was not in his medical record.”

921203:  Chief of Naval Personnel notified Applicant of Administrative Show Cause Proceedings. Applicant informed administrative action requires [Applicant] to show cause for retention due to Applicant’s misconduct and substandard performance of duty. Applicant informed the least favorable characterization of service that may be recommended is other than honorable and that the Applicant may tender a resignation request in lieu of further administrative separation processing.

921219:  NJP for violation of UCMJ, Article 92: General order violation.
         Violation of UCMJ Article 92: Failure to obey lawful order.
 Violation of UCMJ, Article 121: Larceny.
Violation of UCMJ, Article 133: Conduct unbecoming an officer.
Violation of UCMJ, Article 134: Drunk and disorderly.
Violation of UCMJ, Article 134: Obstruction of justice.
Date of Offense: 8-10 May 1992
         Award: Letter of reprimand. No indication of appeal in the record.

930115:  Applicant submitted an unqualified resignation requesting an honorable discharge to Chief of Naval Personnel via NR PERSMOBTM 3408 and Naval and Marine Corps Reserve Center Miami, FL. [Extracted from documents provided by the Applicant.]

930120:  Commanding Officer, Naval and Marine Corps Reserve Center Miami, FL, endorsed the Applicant’s request for unqualified resignation, recommending approval and characterization of service as honorable. [Extracted from documents provided by the Applicant.]

930615:  Applicant tendered a resignation request, waiving his right to a Board of Inquiry. Applicant stated he understood that if his resignation was accepted, he may receive a general discharge from the Naval Service. He understood that such separation, although considered under honorable conditions, was not the highest qualitative type of separation provided for officers of the Naval Service.

930702:  Chief of Naval Personnel recommended to Secretary of the Navy approval of Applicant’s request for resignation with a general character of service. Chief of Naval Personnel recommended the character of service be general (under honorable conditions) with a separation code of BKQ (misconduct due to the commission of a serious offense).

930713:  Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved Applicant’s resignation request with a character of service of general (under honorable conditions) by reason of misconduct due to commission of a serious offense. [Extracted from Chief of Naval Personnel letter dated 930730.]

930730:  Chief of Naval Personnel notified Applicant of his general (under honorable conditions) discharge effective 930713. This action was due to the Applicant’s request for resignation in lieu of administrative separation. The separation code is BKQ (misconduct – commission of a serious offense).


Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19930713 by reason of misconduct due to commission of a serious offense (A) with a service characterization of general (under honorable conditions). After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C). The Board presumed regularity in the conduct of governmental affairs (D).

 The Applicant alleges impropriety in that he submitted an unqualified resignation and that “subsequent endorsements through the chain of command until receipt by Chief of Naval Personnel, recommended that subject member be issued an honorable discharge.” The service record did not contain the Applicant’s unqualified resignation or subsequent endorsements to that letter. The Applicant provided an unsigned and undated copy of his unqualified resignation along with a copy of the Commanding Officer, Naval and Marine Corps Reserve Center Miami, FL, endorsement on the letter of resignation, dated 930120, which did recommend an honorable discharge. In the absence of a complete summary of service, the Board presumed, in accordance with reference D, that the Applicant’s unqualified resignation was not accepted. This presumption is supported by the Applicant’s subsequent qualified resignation, dated 930615, in which he acknowledged that if his resignation was accepted he may receive a general discharge. The record is clear that the Applicant requested a general discharge in lieu of administrative separation processing in which the least favorable characterization of service may be under other than honorable conditions. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. In the absence of contradictory evidence, the Board determined that his discharge was properly characterized. Relief is denied.

The Applicant contends that his conduct “was well above that statutorily required for an honorable discharge.” When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. A general discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record. The Applicant’s service was marred by nonjudicial punishment proceedings for violations of Articles 92 (2 specs), 121, 133, and 134 (2 specs) of the UCMJ. Violations of Articles 92, 121, and 134 are considered serious offenses. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, to the extent that 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. The Applicant provided an affidavit that he is licensed to practice law, a document stating he is a member of the Florida bar, a letter from his father, and a book that he edited as documentation of post-service accomplishments. The Applicant's efforts need to be more encompassing than those provided. For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, and certification of non-involvement with civil authorities. At this time, the Applicant has not provided sufficient documentation of post service character and conduct to mitigate the serious misconduct that resulted in the characterization of discharge. Therefore, relief is not warranted.

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 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.

Pertinent Regulation/Law (at time of discharge)

 A. Secretary of the Navy Instruction 1920.6A (ADMINISTRATIVE SEPARATION OF OFFICERS), effective 21 November 1983 until 12 December 1999 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 15 October 1981.
B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

 C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .

 D. 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 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 “ http://Boards.law.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:

                  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

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