ex-ENS, USN
                                 ND07-00249

                  Current Discharge and Applicant’s Request

Application Received:  20061227              Characterization Received:
Narrative   Reason:     MISCONDUCT                                Authority:
BUPERS ORDER 0073 OF 07 JAN 2003

Applicant’s Request:   Characterization change to:   or
                 Narrative Reason change to:


Applicant’s Issues:    1. Enhance employment opportunities
                 2.  Characterization not warranted by overall service
record
                 3.  Post-service conduct

                                  Decision

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  MISCONDUCT.

Date:  20071212         Washington D.C.    Representative:  NONE DESIGNATED

Applicant Testified:  YES    Applicant available for Questions:  YES
Witnesses:  NONE        Observers:  NONE

                                 Discussion

Issue(s) 1 - ?:   either  which the Board cannot form the basis of relief
for the Applicant, or  the Board does not have the authority to grant the
relief for which the Applicant petitioned.  The Applicant is directed to
the Addendum regarding .

Issue 2 ().  An honorable characterization of service is warranted when the
quality of a member’s service generally meets the standard of acceptable
conduct and performance for naval personnel, or is otherwise so meritorious
that any other characterization of service would be clearly inappropriate.
A general (under honorable conditions) discharge is warranted when the
quality of the member’s service has been honest and faithful but
significant negative aspects of the member’s conduct or performance of duty
outweighed the positive aspects of the member’s service record.  A
discharge under other than honorable conditions is warranted when a member
engages in conduct involving one or more acts or omissions that constitute
a significant departure from the conduct expected of members of the naval
service.  The Applicant’s service was marred by conviction at general court-
martial for violations of the Uniform Code of Military Justice, Articles
81, 107, 108, 121 and 134.  Relevant and material facts stated in a court-
martial specification of which a member has convicted are presumed by the
NDRB to be established facts.  Violations of Articles 81, 107, 108, 121 are
considered serious offenses for which a punitive discharge is authorized
upon conviction at special or general court-martial.  The Board noted that
the Applicant’s misconduct in violation of Articles 81, 108 and 121
occurred while he was a Chief Petty Officer, prior to being commissioned,
and that therefore the misconduct was to a degree less egregious than if
committed as a commissioned officer.  However, in light of the serious
nature of his entire misconduct, especially the fraudulent nature of much
of it, the Board found the characterization of service as under other than
honorable to be warranted.  The Board noted that the Applicant agreed, via
pretrial agreement, to submit a resignation request and accept an
administrative discharge so characterized in exchange for avoiding the
punitive discharge of dismissal.  The Board found no inequity in the fact
that the Applicant received the benefit of his voluntary bargain.

Issue 3 ().  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 civilian life subsequent to leaving the service.  The
NDRB is authorized to consider outstanding post-service factors in the
recharacterization of a discharge 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.  The Board found that
the Applicant had submitted credible evidence indicative of good post-
service conduct, and notes with pleasure the Applicant’s post-service
employment and collegiate success.  He apparently has learned from his
mistakes the harsh realities of living with the consequences of his
actions.  However, after a complete review of the entire record, including
the evidence submitted by the Applicant, the Board determined that the
discharge was appropriate in light of the nature and seriousness of the
Applicant’s misconduct, and that the evidence of post-service conduct was
not sufficient to convince the Board that an upgrade was appropriate.

In reviewing discharges, the Board presumes regularity in the conduct of
Government affairs unless there is substantial credible evidence to rebut
the presumption, to include evidence submitted by the Applicant.  After a
thorough review of the available evidence, to include the Applicant’s
Summary of Service, Medical and Service Record Entries, Discharge Process
and evidence submitted by the Applicant, the Board found that

            Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

              “SECNAVINST 1920.B”

The NDRB will recommend to the Commander, Navy Personnel Command, that the
DD 214 be corrected as appropriate.

                             Summary of Service

Prior Service:   Inactive: USNR (DEP)   19861208 - 19870112
            Active:          19870113 - 19930728
                       USN   19930729 - 19991202  HON
                       USN   19991203 - 20000930  TO ACCEPT LDO COMMISSION

Period of Service Under Review:
Date of Commission: 20001001 Type of Commission: TEMPORARY (LDO)
Date of Discharge:  20030131
Length of Service:  02  Yrs  04  Mths  00  Dys     Lost Time:  Days UA:
Days Confined:
Education Level:  16   Type of Degree:       B.S.  Age at Commission:
AFQT:  30   Highest Rank:  Ensign
Final Officer’s Fitness Reports were available to the Board for review.
Awards and Decorations (per DD 214):  NAVY ACHIEVEMENT MEDAL, JOINT
MERITORIOUS UNIT AWARD, MERITORIOUS UNIT COMMENDATION, GOOD CONDUCT MEDAL
(4), NATIONAL DEFENSE SERVICE MEDAL (2), ARMED FORCES EXPEDITIONARY MEDAL,
SOUTHWEST ASIA SERVICE MEDAL, SEA SERVICE DEPLOYMENT RIBBON (3),
NAVY/MARINE OVERSEAS SERVICE RIBBON(2), NATO MEDAL, EXPERT PISTOL SHOT
MEDAL, KUWAIT LIBERATION MEDAL, FLAG LETTER OF COMMENDATION (3), EXPERT
RIFLEMAN MEDAL

[NDRB note:  The Applicant indicated that he also was awarded a NAVY-MARINE
CORPS COMMENDATION MEDAL not reflected in his service record.]

  Medical/Service Record Entries Related to Characterization of Service or
                             Basis for Discharge

20001001:   Applicant commissioned as an Ensign in the U. S. Navy.
      [NDRB note:  The Applicant’s DD 214 indicated that he was separated
           as a LTJG.  The Board found no evidence in the record indicating
           that the Applicant had been promoted to the rank of LTJG nor
           that such a promotion had been delayed pending resolution of the
           allegations against him.  The Applicant testified that his LES
           indicated that he was promoted to LTJG, and that his Commanding
           Officer specifically decided to treat him as having been so
           absent any notification of promotion delay.]

20020122:   Charges preferred against the Applicant.
      Charge I:  violation of the UCMJ, Article 81 (3 Specs).
      Specification 1:  Conspired to commit larceny and sell 20mm brass
           casings and ordnance shipping pallets.
      Specification 2:  Conspire to commit larceny and sell DRMO property.
      Specification 3:  Conspire to wearing unauthorized insignias,
           decorations, badges, ribbons, and devices.
      Charge II:  violation of the UCMJ, Article 92.
      Specification:  Hazing of AOAN A_ S. Y_, by tying up, hanging from a
           tree and other acts.
      Charge III:  violation of the UCMJ, Article 107 (15 Specs):
      Specification 1:  False statement by denying knowledge of or
           participating in falsifying awards.
      Specification 2:  False statement to PSD that AO2 O_’s JSAM
           certificate was valid.
      Specification 3:  False statement to PSD that AO2 O_’s EAW Specialist
           certificate was valid.
      Specification 4:  False statement to PSD that AO2 O_’s NMCAM
           certificate was valid.
      Specification 5:  False statement to PSD that AO2 T_’s NMCAM
           certificate was valid.
      Specification 6:  False statement to PSD that AO2 J_’s EAW Specialist
           certificate was valid.
      Specification 7:  False statement to PSD that AO2 D_’s EAW Specialist
           certificate was valid.
      Specification 8:  False statement to PSD that AO2 D_’s JSAM
           certificate was valid.
      Specification 9:  False statement to PSD that AO2 D_’s NMCAM
           certificate was valid.
      Specification 10: False statement to PSD that AO3 R_’s JSAM
           certificate was valid.
      Specification 11: False statement to PSD that AO3 R_’s NMCAM
           certificate was valid.
      Specification 12: False statement to PSD that AO3 R_’s NMCAM (2d awd)
           certificate was valid.
      Specification 13:  False statement to PSD that AO2 M_’s JSAM
           certificate was valid.
      Specification 14:  False statement to PSD that AO2 W_’s JSAM
           certificate was valid..
      Specification 15:  False statement to PSD that AO2 W_’s NMCAM
           certificate was valid.
      Charge IV:  violation of the UCMJ, Article 108:
      Specification:  Sold 20mm brass casings and ordnance shipping
           pallets, of a value greater than $100.00.
      Charge V:  violation of the UCMJ, Article 121 (2 Specs):
      Specification 1:  Stole 20mm brass casings and ordnance shipping
           pallets, of a value greater than $100.00.
      Specification 2:  Stole laptop computers and other property from
           DRMO, of a value greater than $100.00.
      Charge VI:  violation of the UCMJ, Article 134 (15 Specs)
      Specification 1:  Solicited AO2 V_ to wrongfully wear NMCAM Medal.
      Specification 2:  Solicited AO2 D_ to wrongfully wear device,
           insignia, ribbon, etc of his choosing.
      Specification 3:  Aid and abet AO2 O_ in wrongfully wearing Air
           Warfare device, JSAM, NMCAM.
      Specification 4:  Aid and abet AO2 J_ in wrongfully wearing Air
           Warfare device.
      Specification 5:  Made false service record EAWS certificate for AO2
           O_.
      Specification 6:  Made false service record JSAM certificate for AO2
           O_.
      Specification 7:  Made false service record NMCAM certificate for AO2
           O_.
      Specification 8:  Made false service record NMCAM certificate for AO2
           T_.
      Specification 9:  Made false service record EAWS certificate for AO2
           J_.
      Specification 10: Made false service record EAWS certificate for AO2
           D_.
      Specification 11: Made false service record JSAM certificate for AO2
           D_.
      Specification 12: Made false service record NMCAM certificate for AO2
           D_.
      Specification 13:  Made false service record JSAM certificate for AO3
           R_.
      Specification 14:  Made false service record NMCAM certificate for
           AO3 R_.
      Specification 15:  Made false service record NMCAM certificate (2d
           awd) for AO3 R_.
      Specification 16: Made false service record JSAM certificate for AO2
           M_.
      Specification 17: Made false service record JSAM certificate for AO2
           W_.
      Specification 18: Made false service record NMCAM certificate for AO2
           W_.

20020321:   Article 32, UCMJ Investigating Officer opined insufficient
           evidence to believe that Applicant committed Charge II and
           Specification 4 of Charge VI.  Found sufficient evidence to
           believe Applicant committed other offenses and recommended
           general court-martial.

20020410:   SJA recommended dismissal of Specification 4, Charge VI,
           referral of other charges to general court-martial.

20020415:   Convening Authority (Commander, Navy Region, Mid-Atlantic)
           dismissed Specification 4, Charge VI, referred other charges to
           general court-martial.

20020621:   Applicant submitted request for resignation for the good of the
           Naval service.  The Applicant acknowledged having consulted with
           counsel; acknowledged understanding that, if accepted, request
           could result in discharge from the Naval service under other
           than honorable conditions; and acknowledged understanding that,
           if discharged under other than honorable conditions, it might
           deprive him of virtually all veterans' benefits based upon his
           current period of active service and that he might expect to
           encounter substantial prejudice in civilian life in situations
           wherein the type of service rendered or the character of
           discharge received therefrom may have a bearing.  The Applicant
           acknowledged that he was charged with several offenses and that
           he and his attorney considered the charges and the investigative
           report in making his resignation request.  The Applicant
           voluntarily waived his right to an appearance before a Board of
           Inquiry, and acknowledged understanding that he could submit a
           statement on his own behalf.

20020624:   Trial counsel recommended approval of Applicant’s resignation
           request.

20020628:   Commander, Navy Region, Mid-Atlantic recommended disapproval of
           Applicant’s resignation request, on the grounds that general
           court-martial was appropriate forum for adjudicating Applicant’s
           alleged misconduct.

20020708    Chief of Naval Personnel recommended that Secretary of the Navy
           disapprove Applicant’s resignation request because the Applicant
           did not acknowledge guilt to any of the alleged offenses.

20020708:   Applicant offered a Pretrial Agreement (PTA), agreeing to plead
           guilty to specified offenses and submit resignation for the good
           of the service in exchange for Convening Authority’s suspension
           of dismissal.

20020710:   Convening Authority accepted PTA offer.

20020724:   General Court Martial.
      Pursuant to PTA, Applicant pled guilty to:
      Charge I (Article 81), Specification 1:  Conspired to sell 20mm brass
           casings and ordnance shipping pallets;
      Charge III Article 107), Specification 1:  False statement by denying
           knowledge of or participating in falsifying awards;
      Charge IV (Article 108), Specification:  Sold 20mm brass casings and
           ordnance shipping pallets, of a value greater than $100.00;
      Charge V (Article 121), Specification 1:  Wrongfully appropriate 20mm
           brass casings and ordnance shipping pallets, of a value greater
           than $100.00; and
      Charge VI (Article 134), Specification 4 (consolidated with
           Specifications 5-7, 12-14):  Made false service record EAWS,
           JSAM, NMCAM certificates for AO2 O_; NMCAM certificate for AO2
           T_; and JSAM, NMCAM, and NMCAM  (2d awd) certificates for AO3
           R_.
      Pursuant to PTA, government dismissed Specifications 5-8 and 12-14 of
           Charge IV and tried the Applicant on Specification 2 of Charge I
           and on Charge II.
      Applicant found Guilty as pled, Not Guilty on the tried offenses, and
           Not Guilty of all other offenses not dismissed.  Sentenced to
           dismissal.

20020820:   Applicant submitted a request for resignation for the good of
           the Naval service in accordance with the PTA.  The Applicant
           requested a General discharge.  The Applicant acknowledged
           having consulted with counsel; acknowledged understanding that,
           if accepted, request could result in discharge from the Naval
           service under other than honorable conditions; and acknowledged
           understanding that, if discharged under other than honorable
           conditions, it might deprive him of virtually all veterans'
           benefits based upon his current period of active service and
           that he might expect to encounter substantial prejudice in
           civilian life.  The Applicant acknowledged his conviction at
           general court-martial of several offenses, his sentence of
           dismissal, and that he was submitting the request in compliance
           with the terms of his PTA.   The Applicant requested that he
           receive a characterization of service as general (under
           honorable conditions).  The Applicant voluntarily waived his
           right to an appearance before a Board of Inquiry, and attached a
           statement to be considered by the Secretary of the Navy in
           making a decision regarding his request.

20021113:   Convening Authority took action on the Applicant’s general
           court-martial, approving the sentence but suspending it for 12
           months in accordance with the PTA.

20030131:   DD Form 214:  Applicant discharged this date by reason of
           misconduct due to commission of serious offense with a
           characterization of service as under other than honorable
           conditions.

20040625:   NMCCA:  Affirmed the findings and sentence as approved by the
           convening authority.

20051006:   NDRB documentary record review Docket Number ND04-01277
           conducted.  Determination: discharge proper and equitable;
           relief not warranted.

Service Record contains a partial Administrative Discharge package.

      Types of Documents Submitted by Applicant and Considered By Board

Related to Military Service: Service and/or Medical Record:         Other
Records:

Related to Post-Service Period:
      Employment:                 Finances:                   Education:

      Health/Medical Records:           Substance Abuse:
Criminal Records:
      Family/Personal Status:           Community Service:
References:

Additional Statements From Applicant:   From Representative:
Other Documentation (Describe)

[NDRB note:  The Applicant requested that the Board consider documentation
he previously submitted for his Documentary Review.  The Board did so.]

                          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.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval
Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para
403m(7)(a), Presumption Concerning Court-Martial Specifications.

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 Articles 81, Conspiracy;
107, False official statements; 108, Military property of United States--
Loss, damage, destruction, or wrongful disposition; and 121, Larceny.





                  ADDENDUM:  Information for the Applicant

Complaint Procedures:  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 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:  Subsequent to a document review, former members are
eligible for a personal appearance hearing, provided the 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.  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 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 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 Board has no authority to
upgrade a discharge for the sole purpose of enhancing employment or
educational opportunities.  Regulations limit the Board’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 Board for Correction of Naval Records (BCNR)
can make changes to reenlistment codes.  Additionally, the Board 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 subsequently is processed for an administrative
involuntary separation 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, 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 “PTSD.”
Only the Board for Correction of Naval Records can grant this type of
narrative reason change.

Automatic Upgrades - 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 civilian life subsequent to leaving Naval service.  The
NDRB is authorized to consider 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.  Examples of
documentation that may be provided to the Board include proof of
educational pursuits, verifiable employment records, documentation of
community service, credible evidence of a substance free lifestyle and
certification of non-involvement with civil authorities.

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 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.

Board Membership:  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