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NAVY | DRB | 2007_Navy | ND0700839
Original file (ND0700839.rtf) Auto-classification: Denied
ex-LTJG, USN
ND07-00839
Current Discharge and Applicant’s Request
Application Received: 20070521   Characterization Received:
Narrative Reason: MISCONDUCT (SERIOUS OFFENSE)                     Authority: SECNAVINST 1920.6B

Applicant’s Request:     Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:      1. Not warranted based on overall service record
                           2. Commanding Officer did not have authority to take action
                           3. Denied adequate counsel
                           4. Resignation not voluntary due to affect of medications
                           5. Post-service conduct

Decision

 By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall MISCONDUCT (SERIOUS OFFENSE).
Date: 20 071220            Location: Washington D.C.        R epresentation :

Discussion

Issue 1 ( ). The Applicant claims that his discharge was inequitable because it was based on “one NJP in 13 years of service with no prior adverse action.” The Board first advises the Applicant that some offenses, by their nature and/or circumstances, even if isolated, warrant discharge in spite of a members otherwise positive record. In regards to his case, however, the Applicant’s contention is not factually accurate. While the Applicant was the subject of only one NJP, his misconduct was of multiple, often repeated, offenses over time. The offenses to which the Applicant acknowledges guilt, especially considering his status as an officer, alone are more than sufficient to warrant the discharge received. Further, the Board was satisfied that the findings of Applicant’s culpability to the other offenses was factually supported by the record. The Board also found that the Applicant’s comprehensive submission of his version of his relationship with his Commanding Officer and Operations Officer did not mitigate his misconduct. Even if the Applicant’s version of events was accepted at face value, they appear to have no relationship to, and do not excuse or mitigate, the Applicant’s adulteries, fraternizations, larcenies, orders violations and false official statement.

Issue 2 ( ). The Applicant claims that his NJP was “based on charges preferred by my Commanding Officer…who did not have the authority to prefer said charges.” The Board was uncertain as to what the Applicant meant, but treated this as a claim that his Commanding Officer was an accuser thus prohibited from taking action on his case. However, the Board again found that the Applicant’s claim was factually inaccurate. The charges preferred against him on 20061006 were preferred by a Chief Legalman. They were subsequently disposed of at NJP. The Board found no impropriety on the part of the Commanding Officer.

Issue 3 ( ). The Applicant makes a number of specific claims regarding the adequacy of his counsel. The Board reviewed each specific claim as part of the single issue that the Applicant was denied adequate counsel. Review of the record and the Applicant’s submission indicated that counsel was detailed to represent the Applicant after charges had been preferred against him, as was his right; detailed counsel identified a potential conflict of interest, or at least the appearance thereof, to the Applicant and advised of appropriate means to address it, to include seeking different counsel; detailed counsel continued to represent the Applicant, presumably with his consent as evidenced by the Applicant’s request to have detailed counsel continue to represent him even if his request for individual military counsel (IMC) was approved; and there was no evidence in the record tending to show that the Applicant’s IMC request was improperly or unfairly denied. Counsel are presumed to be competent and acting in their client’s best interest. The Applicant’s detailed counsel apparently assisted him in avoiding a general court-martial for serious allegations to at least some of which the Applicant acknowledges his guilt. The Board found no impropriety or inequity regarding the adequacy of the Applicant’s counsel.

Issue 4 ( ). The Applicant claims that he “agreed to admit guilt to all the charges to avoid imprisonment” with the “advice given to me from a conflicted attorney and while [he] was under heavy medication,” and that the government’s offering of a deal while he was so medicated denied him due process. The Board addressed the claim of a “conflicted attorney” in Issue 3. The Board determined that, even assuming that the government first raised its willingness to consider approval of a resignation request, there was no due process issue implicated in the government doing so. The Applicant had no right to have a resignation in lieu of trial approved, or even recommended for approval by his superiors. The Board considered the Applicant’s claim to imply that his medications impaired his decision-making ability to such an extent that his request for resignation was not freely and intelligently submitted. The Applicant submitted credible evidence to support his contention that he was taking significant medication; however, there is no evidence tending to demonstrate that the Applicant’s actual decision-making ability was impaired. The Applicant’s claim is insufficient to overcome the presumption of regularity. Further, and contrary to his claim, his decision to request to resign, in light of the serious nature of the allegations against him and the risk of severe punishment at court-martial, appears to have been well-reasoned.

Issue 5 ( ). Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety or inequity after a review of Applicant’s case. 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 could 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. As of this time, the Applicant has not provided sufficient post-service documentation to consider mitigating the misconduct that resulted in the characterization of discharge.

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:

          “ UNDER OTHER THAN HONORABLE CONDITIONS ”
         “ SECNAVINST 1920.6C ”

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

Summary of Service

Prior Service:
 Inactive:                 19920528 - 19920706 (DEP)
Active:          19920707 - 19960706 (Applicant refused to sign)
Inactive:                 19960707 - 20000527
Inactive:                 20010327 - 20020215
Active:          20020216 - 200 20912

Period of Service Under Review:
 Date of Commission: 2002091 3     Years Contracted : INDEF; Extension:     Date of Discharge: 20070206
Length of Service: 04 Yrs 04 Mths 24 D ys                  Lost Time: Days UA: Days Confined:
Education Level: 16               Age at Commission : 29            AFQT: UNK        Highest Rank/Rate: LTJG
 Evaluation marks (# of occasions):       Performance: 3.50(6)     Behavior: 3.17(6)
 Awards and Decorations (per DD 214): NDSM(2), GWOTSM, NMCAM, NAVY “E”, GCM, ARMY COMMENDATION MEDAL, SSDR(2), Pistol EX, Rifle SS, SWO PIN, ARMY PARACHUTIST BADGE.

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


20020913:        Applicant commissioned as an Ensign.
20040913:        Applicant promoted to Lieutenant Junior Grade.

20061006:        Charges preferred against the Applicant for alleged violations of of the UCMJ.
         Ch I, Art 92: Engaged in oral sex w/female OS2 on divers occasions in February 2006.
         Ch II, Art 107: Claimed to visit friend in Japan but took unauthorized leave to Dubai, UAE August 2006.
          Ch III, Art 121: Spec 1 – Abd BLUE RIDGE December 2005 steal “Jane’s Fighting Ships 2005-2006.”
          Spec 2 – Abd BLUE RIDGE December 2005 steal “Jane’s World’s Aircraft 2005-2006.”
         Spec 3 – Abd BLUE RIDGE December 2005 steal digital camera.
         Spec 4 – Yokosuka, Japan June 2006, steal comic book “Fantastic Four #48.”
          Ch IV, Art 134: Spec 1 – Adultery w/female HM3 on divers occasions btwn Nov 2005 - Sep 2006.
          Spec 2 – Fraternize by sexual relations w/female HM3 btwn Nov 2005 - Sep 2006.
         Spec 3 – Fraternize by sexual relations w/female OS2 btwn Jan 2006 - Jul 2006.
         Spec 4 – Fraternize by sexual relations w/female CSSN btwn Apr 2005 – Jun 2005.
          [Extracted from Applicant’s document submission.]
20061113:        Applicant submitted resignation in lieu of trial by general court-martial.
         [Extracted from Commander, Nav y Personnel Command, letter undated.]

20061116:        NJP -- Viol UCMJ Art. 92 – Failure to obey order , Art 107 – False Official Statements, Article 121 – Larceny and Wrongful Appropriation (4 specs), and Article 134 – Fraternization (4 specs).
         Awarded – Written Reprimand.
20021116:        Applicant issued Punitive Letter of Reprimand.

20061218:        Expeditionary Strike Group Seven, forwarded Report of NJP to Commander, Nav y Personnel Command, via the Applicant, recommending Applicant for retention. The letter included the Applicant’s request for resignation and recommended approval of that request.

20070125:        Expeditionary Strike Group Seven endorsed Report of and forwarded to COMNAVPERSCOM noting that the Applicant had failed to make a statement regarding the NJP within the allotted time for comment.

undated:         Commander, Nav y Personnel Command, recommended to the Assistant Secretary of the Navy (Manpower and Reserve Affairs) that with characterization of service as

200701x 5 :        Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved App licant’s discharge by reason of (date illegible)      Misconduct (Serious Offense), with characterization of service as .
20070206:        Applicant discharged this date.

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)

Pertinent Regulation/Law

 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 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. 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 92, Failure to obey order or regulation; 107, False official statements; 121, Larceny and wrongful appropriation; 134, Adultery; and 134, Fraternization.

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

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