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NAVY | DRB | 2007_Navy | ND0700922
Original file (ND0700922.rtf) Auto-classification: Denied
ex-ENS, USN
ND07-00922
Current Discharge and Applicant’s Request
Application Received: 20070627            Characterization Received:
Narrative Reason: MISCONDUCT              Authority: BUPERS ORDER NUMBER 0605/DTG 011432ZMAR05

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to: “REMOVE MISCONDUCT ”
Applicant’s Issues:       1. Wrongly separated instead of receiving treatment for PTSD from sexual assault and harassment

Decision

 By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall MISCONDUCT .
Date: 20 080103             Location: Washington D.C         R epresentation :

Discussion

Issue 1 ( ). The Ap plicant claims that she was raped as an underclassman at the Naval Academy and subject to sexually harassing behavior while aboard the USS VICKSBURG . The record indicates that the Applicant engaged in a months long personal and sexual relationship with a male enlisted sailor and had sexual relations with a male officer onboard her ship. The Applicant chose not to appeal her nonjudicial punishment (NJP) , nor dispute the validity of her debt during the administrative separation process. The Board determined that the Applicant’s performance evaluation for the period prior to her misconduct was highly favorable; that her discharge for misconduct was factually supported , and that her administrative processing was in accordance with applicable regulations and consistent with standards of naval discipline. The Board noted that the Applicant, by her own admission, did not provide accurate information to medical authorities regarding her Academy sexual encounter ; never raised her current claim as an explanation for her conduct despite several opportunities to do so while undergoing NJP and subsequent administrative separation processing ; and , based on her document submission, did not provide post-service medical providers accurate information regardin g the reason for her discharge. The Board found no indication in the record that the Applicant was inequitably or improperly denied treatment for any reported or discovered medical problem. Further, e ven if taken at face value, the Board determined that the Applicant’s claim did not excuse or mitigate the misconduct for which she was discharged.

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 1920.6 B ”
        
The NDRB will recommend to the C ommander, Navy Personnel Command, that the DD 214 be corrected as appropriate.

Summary of Service

Prior Service: USNR (USNA)       DETAILS OF SERVICE NOT FOUND IN RECORD
Period of Service Under Review:
 Date of Commission : 20030523      Years Obligated: NOT FOUND IN RECORD :    Date of Discharge: 20050318
Length of Service : 01 Yrs 09 Mths 26 D ys Lost Time : NONE        Education Level:
Age at Commission :                         AFQT: NOT FOUND IN RECORD        Highest Rank /Rate : ENS   
Evaluation marks (# of occasions):       Performance: 3.5 ( 2 )      Behavior: 2.5 ( 2 )
Awards and Decorations ( per DD 214): NDSM, SSDR, GWOTEM

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

20040925 :        NJP -- Viol UCMJ Art. 92 – May 2004 – Sep 2004 fraternize by dating and having sexual relations w/GM3; Art 133 – Sep 2004 have sexual relations w/ENS aboard USS Vicksburg .
         Awarded - Written Reprimand.
20040925 :        Applicant waived right to appeal NJP.

 20040927 :        USS VICKSBURG (CG 69) endorsed Report of recommending Applicant for retention and provided copy to Applicant for comment.

 20041015 :        Applicant responded to Report of , requesting that she not be required to show cause .

 20041029 :        USS VICKSBURG (CG 69) forwarded Report of NJP to Commander, Naval Personnel Command.

 20050118 :        Commander, Naval Personnel Command, notified Applicant of administrative separation processing .

 20050126 :        Applicant acknowledged rights . Applicant did not desire to tender resignation or submit statement.

20050215 :        Commander, Naval Personnel Command, recommended to the Assistant Secretary of the Navy (Manpower and Reserve Affairs) that with characterization of service as general (under honorable conditions).

20050218 :        Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved Applicant’s discharge by reason of MISCONDUCT , with characterization of service as ) .

 20050318 :        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 1920.6B (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 .


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, provi ded 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 grante d 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.
Employmen t / 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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