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NAVY | DRB | 2009_Navy | ND0900784
Original file (ND0900784.rtf) Auto-classification: Denied

ex-LT, USN
Current Discharge and Applicant’s Request
Application Received: 20090220
Characterization of Service Received:
Narrative Reason for Discharge: (OTHER)
Authority for Discharge: SECNAVINST 1920.6B

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

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        NFIR      Active:            20030502 - 20030717 HON
                                                       To accept commission

Period of Service Under Review:
Date of Appointment : 20030502    Age at Enlistment:
Years Contracted: Indefinite
Date of Discharge: 20080530      Highest Rank: LT
Length of Service : Y ear ( s ) M onth ( s ) 29 D a y ( s )
Education Level:
Officer’s Fitness Report: All officer performance reports were available to the Board for review.
 Awards and Decorations ( per DD 214):      MTS

Periods of UA /C ONF :

NJP :
- 20080219 :       Art icle 133 (Conduct unbecoming an officer and gentlem a n)
         Article 134 (Fraternization)
                   Awarded : Punitive Letter of Reprimand, FOP Susp ended : NONE

S CM : SPCM: C C : Retention Warning Counseling :

Administrative Corrections to the Applicant’s DD 214

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

         “ GENERAL (UNDER HONORABLE CONDITIONS) ”
         “ SECNAVINST 1920.6B ”

The NDRB will recommend to the C ommander, Navy Personnel Command , that the DD 214 be corrected as appropriate.
Types of Documents Submitted/reviewed
Related to Military Service:     
DD 214:         Service/ Medical Record:                  Other Records:

Related to Post-Service Period:  
         Employment:                        Finances:                          Education /Training :     
         Health/Medical Records:           Substance Abuse:                           Criminal Records:       
         Family/Personal Status:           Community Service:                References:              
Additional Statements :
 From Applicant:        From Representat ion :    From Congress m ember :
Oth er Documentation :


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

Applicant’s Issues

 1. Isolated incident.
2. Record of service.

Decision

Date : 20 0 9 0601    Location: Washington D.C .       R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall MISCONDUCT (OTHER) .
Discussion

 : ( ) . The Applicant contends her discharge was inequitable because it was based on one isolated incident in five years of service with no other adverse actions. 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. The Applicant’s r ecord of service was marred by one NJP for violations of the Uniform Code of Military Justice (UCMJ): Article 133 (Conduct unbecoming an offi cer and gentleman ) and Article 134 (Fraternization). These are considered serious offenses which could have resulted in a punitive discharge and confinement if adjudicated and awarded as part of a sentenc e by a special or general court- martial. The NDRB advises the Applicant certain serious offenses , even though isolated, warrant separ ation from the service to maintain proper order and discipline. The command did not refer the Applicant for a court- martial but opted instead for an administrative discharge.

The Ap plicant, a Naval Officer, knowingly fraternized with an Enlisted Sailor (Chief Electricians Mate) by socializing with, having sexual intercourse and otherwise engaging in a romantic relationship. While they were both still i n an active duty status in the Navy, the Applicant married the Enlisted Sailor in October 2007 and then became pregnant in December 2007. The Naval Reactors Headquarter 08F section head states the Applicant requested a private meeting with him on 5 February 2008 and told him “ she had been intentionally deceptive about he r relationship w ith an Enlisted Sailor to protect him and his staff from involvement [in a fraternization policy violation]. ” From October 2007 until February 2008, t he Applicant continued to refer to the Enlisted Sailor as her f iancé, which was knowingly a false statement, although they had been married for several months . At her NJP, the Applicant knew what she was doing was wrong, but continued the relationship in direct violation of Navy regulations. T he Applicant ’ s deceptiveness and blatant disregard for regulations was not in k eeping with the high expectations and traditions of a Nava l Officer, and therefore, the NDRB determined the awarded discharge was appropriate and an upgrade would be inappropriate.

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, there is no law or regulation, which provides 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. Outstanding post-service conduct, 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, is considered during Board reviews. Docum entation to help support a post- service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificate (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attending or completion of higher education (official transcripts) and documentation of a drug- free lifestyle. The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by- case basis to determine if post-service accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character.

Besides the Applicant ’ s statement on the DD Form 293, she failed to provide any additional documentation and evidence on her behalf. The Applicant could have produced additional evidence as stated in the above paragraph with the full understanding completion of these items alone does not guarantee an upgrade. The Board determined the charact erization of service received, Gener al (Under Honorable Conditions) , was an appropriate characterization considering the length of service and the UCMJ violations involved , and based on the lack of post- service documentation provided an upgrade would be inappropriate.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found


Pertinent Regulation/Law

 A. Secretary of the Navy Instruction 1920.6B (ADMINISTRATIVE SEPARATION OF OFFICERS), effective
13 December 1999 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, Article 133 (Conduct un becoming an officer and gentlema n) and Article 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, 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 NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the NDRB ’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 NDRB 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 or is referred to a court martial 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 or for any basis wherein an Other Than Honorable Discharge is authorized, 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 other medical related reasons. 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 NDRB 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 special 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. The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership: The names and votes of the members of the NDRB B oard 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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