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NAVY | DRB | 2009_Navy | ND0902586
Original file (ND0902586.rtf) Auto-classification: Denied

ex-CAPT, USN
Current Discharge and Applicant’s Request
Application Received: 20090917
Characterization of Service Received:
Narrative Reason for Discharge: UNACCEPTABLE CONDUCT
Authority for Discharge: BUPERS ORDER 3268 1811 PESRS272C 21NOV2008

 Applicant’s Request:      Characterization change to:      
         Narrative Reason change to:       Sufficient Service for Retirement

Summary of Service

Prior Service:
Inactive:         NONE              Active:            19830303 - 19840104

Period of Service Under Review:
Date of Appointment : 19840105    Age at Enlistment:
Years Contracted: Indefinite
 Date of Discharge: 20081130      Highest Rank: CAPT
Length of Service : 24 Y ear ( s ) M onth ( s ) 26 D a y ( s )
Education Level:
Officer’s Fitness reports: Available
Awards and Decorations ( per DD 214):      Rifle Pistol LOM MSM (4) (3) AFAM J MUA (2) CGUC (2) (3) (2)
Periods of UA /C ONF :

NJP :

- 20080411 :       Article (Failure to obey order or regulation and dereliction of duty ), 2 specifications [ E xtracted from Action Memo to Commander, Navy Personnel Command .]
         Specification 1: Violated U.S. Central Command General Order Number 1B by wrongfully consuming alcohol in the country of Iraq.
         Specification 2: Derelict in enforcing the general order when he made the statement during an all-hands call that he knew personnel were drinking and having sex at the command and directed them to be discreet, do not drive, and do not get caught.
          Awarded: Punitive letter of reprimand

S CM : SPCM: C C :

Warning Counseling : [Per the DCNO (Manpower, Personnel, Training and Education)(N1) ltr of 14 November 2008]
- 200712 : For improperly disclosing protected information pertaining to an earlier Army IG investigation regarding a co-worker.
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:           Rehabilitation/Treatment:                  Criminal Records:       
         Personal Documentation :           Community Service:                References:     
         Department of VA letter:                  Oth er Documentation:    
                  Additional Statements :
          From Applicant:            From /To Representation:            From /To Congress m ember :        


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

Applicant’s Issues

 1. Narrative reason for separation affects his employment opportunities.
2. Narrative reason for separation and separation code were improper and inequitable.
3. “The s tigmatizing effect of ‘ unacceptable conduct ’ as a reason for separation is unmistakable.”
Decision

Date: 20 10 10 25             Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall SUFFICIENT SERVICE FOR RETIREMENT .

Discussion

 The NDRB, under its responsibility to e xamine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of g overnment al affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s record of service included one counseling for improperly disclosing protected informati on pertaining to a Multi-National Force Iraq Inspector General investigation in which the Applicant released evidence from an investigation with the intent to discredit a civilian employee of the Multi-National Security Transition Command-Iraq and shared the civilian employee’s personal information in violation of the Privacy Act. The Applicant had one nonjudicial punishment (NJP) for violations o f the Uniform Code of Mil itary Justice (UCMJ): Article 92 ( Failure to obey order or regulation, 2 specifications: violated U.S. Central Command General Order Number 1B by wrongfully consuming alcohol in the country of Iraq, and derelict in enforcing the general order when he made the statement during an all-hands call that he knew personnel were drinking and having sex at the command and directed them to be discreet, do not drive, and do not get caught). Four days prior to his NJP , the Applicant submitted his request for voluntary retirement, which was approved by the Secretary of the Navy , effective 1 December 2008.
Issue 1: (Nondecisional) The Applicant contends his narrative reason for separation affects his employment 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.

Issue s 2 -3 : (Decisional) ( ) . The Applicant contends his narrative reason for separation and separation code were improper and inequitable and “the stigmatizing effect of ‘ unacceptable conduct ’ as a reason for separation is unmistakable. ” The Applicant stated he was not given notice or an opportunity to be heard before an a dverse narrative reason for separation (Unacceptable Conduct) and separation code, RNC, were put on his DD Form 214. The Applicant stated he retired , because he had sufficient service to retire, was not asked or forced to retire, did not retire in lieu of administrative show cause proceedings, was not trying to avoid NJP , and was not trying to avoid a B oard of I nquiry. The Applicant submitted his request for voluntary retirement on 7 April 2008. On 18 August 2008 , the Commander, Navy Personnel Command signed a letter to the Applicant regarding the notification of retirement grade determination . I t stated in paragraph 2, “The factual basis supporting this action is your non-judicial punishment of 11 April 2008, as reported by reference (b).” [Deputy COMUSNAVCENT ltr 1621 Ser N00A/168 of 29 May 08] Per his letter to the Commander, Navy Personnel Command (PERS-834) dated 20 August 2008, the Applicant stated in paragraph 3, “I understand my performance has been substandard and I will be retired in the highest paygrade in which I have served satisfactorily (which may be a lesser paygrade), as determined by the Secretary, who maintains exclusive retirement grade determination authority. ” Per the Action Memo for the Commander, Navy Personnel Command submitted on 15 July 2008, the “Chain of command recommendation: Deputy Commander, U.S. Naval Forces Central Command recommended CAPT [Applicant] not be required to show cause for retention nor be detached for cause since he returned to his parent command.” On 14 November 2008, the Deputy Chief of Naval Operations (Manpower, Personnel, Training and Education) (N1) made recommendations to the Assistant Secretary of the Navy (Manpower & Reserve Affairs) (Acting) to retire the Applicant in the paygrade of O-6 and to list his separation code as RNC (Unacceptable C onduct). T he Secretary of the Navy approved the Applicant’s retirement as an O-6 . Since the Applicant was not required to show cause for retention, was not separated for cause, was not subjected to a Board of Inquiry, and in consideration of his many years of exemplary service, the NDRB discerned an inequity in the narrative reason for separation and determined relief is warranted based on equitable grounds. By majority rule , the NDRB determined the appropriate narrative reason for discharge was Sufficient Service for Retirement.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries, and d ischarge p rocess, the Board found Therefore, the awarded characterization of service shall and the narrative re ason for separation shall change to SUFFICIENT SERVICE FOR RETIREMENT .

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 .




ADDENDUM: Information for the Applicant

 Complaint Procedures : If you believe 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 : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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. There are veterans organizations such as the American Legion and the Disabled American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade. If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their 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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. 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 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 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended 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 BCNR can grant this type of narrative reason change.

 Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct : The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. 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. Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (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; attendance at 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 in-service misconduct was an aberration and not indicative of the member’s overall character.

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 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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