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NAVY | DRB | 2007_Navy | ND0700315
Original file (ND0700315.rtf) Auto-classification: Denied


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

FOR OFFICIAL USE ONLY

ex-ENS, USN
Docket No. ND07-00315

Applicant ’s Request
The application for discharge review was received on 20070110 . The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable . The Applicant requested a personal appearance hearing before the Board in the Washington, D.C. Metropolitan area. The Applicant designated an officer with the Naval Legal Service Office Central as the representative on the DD Form 293. Subsequent to the application, the A pplicant requested a documentary record discharge review in lieu of a personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20070305. 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) by reason of misconduct (other) .

PART I - ISSUES AND DOCUMENTATION

Decisional I ssues
Equity: Characterization not warranted by overall service record.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant , was considered:
Applicant ’s discussion of issues (4 pages)
Applicant ’s DD Form 214 for period May 27, 2005 to July 31, 2006 (Member 4 )
 Applicant’s DD Form 214 for period July 19, 2000 to June 28, 2001 (Member 1)
 Applicant ’s Bachelor of Science Scholastic Record from United States Naval Academy
Verbatim transcript of voice message of September 25, 2005
 Applicant’s memo to ENS C_, dated October 2, 2005
Punitive Letter of Reprimand, dated October 31, 2005 (2 pages)
Letter from LT D_ J_ to ASN (MRA), dated April 14, 2006
Letter from ENS L_ E. C_, USN, dated July 28, 2006
Letter from Vice Chief of Naval Operations, dated October 18, 2006 (2 pages)
 E-mails between LT C_ J. R_ and LT R_ A. J_, dated September 21, 2006 and September 22, 2006

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):

          Inactive: USNR (DEP)     20000313 – 20000718       COG
         Active: USNR      20000719 – 20010628      RELAD
         Active: USNR     20010629 – 20050526     

Period of Service Under Review :
Date of Commission: 20050527              Date of Discharge: 20060731

Length of Service (years, months, days):

          Active: 0 1 0 2 0 5
         Inactive: None

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

Age at Commission: 23

Type of Commission: Regular (Indefinite)
Education Level: 16                                  Degree : BS

Highest Grade: ENS
Fitness Reports were not available to the Board for review.

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214 ): National Defense Service Medal


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

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

050527 :  Applicant commissioned as an Ensign in the United States Navy.
050923:  Applicant, while intoxicated, called ENS C_ and left a message on her cell phone. Call ed ENS C_ a “two-timing b ---- ,” “two-timing w ---- ,” and a “dirt y f---. ” Ma de a second, similar, phone call .
         [Extracted from Commanding Officer, Naval Aviation Schools Command endorsement of 051107 on Applicant’s NJP appeal and verbatim transcription from Applicant’s submission.]

051002:  Applicant provide d written apology to ENS C_, USN .

051002:  Applicant submi tted m emorandum to Commanding Officer, Naval Aviation Schools Command, pledging to not initiate personal communication with ENS C_ for 5 years, and to abstain from consuming alcohol for 5 years.
051007 :  NJP for violation of UCMJ, Article 133: Conduct unbecoming an officer and gentleman .
          Specification: Was, o n or about 050923, in a public place, using insulting or defamatory language towards ENS C_, U.S. Navy on a cell phone and being drunk and disorderly which conduct was of a nature to bring discredit upon the armed forces.
         Award: Written reprimand.

051007:  Applicant attrited from flight training program.
051018:  Applicant requested a seven-day continuance to appeal NJP .
051018:  Commanding Officer, Naval Aviation Schools Command , extended deadline for Applicant ’s NJP appeal to 051025.
051025:  Applicant appealed NJP on the grounds that attrition from flight training program, while not a formal punishment, is disproportionate to the offense.

051031:  Applicant given a Punitive Letter of Reprimand by Commanding Officer, Naval Aviation Schools Command.
051107 :  Commanding Officer, Naval Aviation Schools Command , forwarded NJP appeal to Chief of Naval Air Training , recommending denial.

051123:  Chief of Naval Air Training denied NJP appeal.
051128:  Denial of NJP appeal delivered to Applicant.

 051128:  Commanding Officer, Naval Aviation Schools Command, endorse d Report of NJP and provide d copy to Applicant for comment .
051128:  Applicant acknowledged receipt of report of nonjudicial punishment and indicated inten t to submit written comments.
051212:  Applicant provide d comments regarding Report of NJP .
051214:  Commanding Officer, Naval Aviation Schools Command, forward ed Report of NJP with Applicant’s comments to Commander, Naval Personnel Command.

060330:  Applicant notified of initiation of administrative separation processing.
         [Extracted from Commander, Navy Personnel Command letter to Secretary of the Navy, not dated.]

060414:  Applicant responded to notification of administrative separation processing.
          [Extracted from Commander, Navy Personnel Command letter to Secretary of the Navy, not dated.]
Not dated :       Commander, Navy Personnel Command recommended to S ecretary of the Navy, via Chief of Naval Personnel, that Applicant be separated by reason of misconduct with a characterization of service as ge neral ( u nder h onorable c onditions) .

Not dated :       Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved Applicant ’s discharge by reason of misconduct with a characterization of service as g eneral ( u nder h onorable c onditions) .

Service Record was missing elements of the Summary of Service.
 Service Record contains a partial Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20060731 by reason of misconduct (other) (A) with a service characterization of general (under honorable conditions). 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 (B an d C). The Board presumed regularity in the conduct of governmental affairs (D).
In the Applicant ’s equity issue, the Board found that characterization of Applicant’s service as general (under honorable conditions) was equitable. 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 Board noted that the period of service under review commenced on 20050527 and Applicant committed his misconduct -- public, drunken, verbal, vulgar, and repeated berating of a female officer -- within the first 4 months of that period of service. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to uphold the standards of behavior expected of Naval officers and falls short of that required for an upgrade of his characterization of service. Relief is not warranted.

In regards to the Applicant’s purported impropriety issue, namely that the Commanding Officer who imposed nonjudicial punishment did so not knowing, nor intending, the consequences a punitive letter of reprimand would have on the Applicant, the Board determined that, even if an accurate characterization of the Commanding Officer’s understanding and intent, the propriety of the discharge was not implicated. Furthermore, the Board determined that the evidence did not support the Applicant’s contention. Reprimand is an authorized, but not required, punishment. The Manual for Courts-Martial specifies that, when imposed on commissioned officers, reprimands must be administered in writing (E). The evidence of record demonstrates that the Commanding Officer determined that a written reprimand was the appropriate punishment for the Applicant’s misconduct. The Applicant was afforded, and exercised diligently, his appeal rights. Upon denial of the Applicant’s appeal, the Commanding Officer forwarded, per regulations, a report of the Applicant’s nonjudicial punishment to the Commander, Navy Personnel Command recommending that the Applicant be required to show cause for retention. While a common result in the case of officer misconduct, there is no requirement that the Show Cause Authority accept the Commanding Officer’s recommendation. There is no evidence that the decision to notify the Applicant of administrative separation processing was improper. The Applicant was afforded, and again exercised, his rights in regard to the proposed separation. While based on the same factual event, the decision that the Applicant’s misconduct warranted nonjudicial punishment and that his misconduct warranted administrative separation were separate decisions made by separate authorities. In regard to both decisions, proper procedures, including affording the Applicant his rights, were followed. In particular for the Board’s purposes in reviewing the discharge, the evidence of record and the presumption of regularity in the conduct of government affairs supports the conclusion that the basis for discharge existed in fact, that the notification of administrative separation was proper, that the Applicant was afforded all of his rights in response, and that the proper separation authority considered all relevant factors in good faith in determining that discharge was appropriate. 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. 6C ( ADMINISTRATIVE SEPARATION OF OFFICERS), effective 15 December 2005 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 Instruction 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 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 .
E. Manual for Courts-Martial, Part V, Paragraph 5.c.(1) (2005 Edition).

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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction . 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 ” .
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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