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NAVY | DRB | 2010_Navy | ND1000882
Original file (ND1000882.rtf) Auto-classification: Denied

ex-CDR, USN
Current Discharge and Applicant’s Request
Application Received: 20100204
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: SECNAVINST 1920.6C [ADMINISTRATIVE SEPARATION OF OFFICERS]

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

Summary of Service

 Prior Service:
 Inactive:                 Active: 

Period of Service Under Review:
 Date of Appointment : 19940514     Age: 39
Years Contracted : Indefinite
Date of Discharge: 200 8 0 815       Highest Rank : CDR
Length of Service: 14 Years Months 0 2 D ays
Education Level:         AFQT: NFIR
Officer’s Fitness reports: Available
Awards and Decorations ( per DD 214):      Rifle Pistol (2)

Periods of UA /C ONF :

NJP :

- 20080418 :      Article 133, Conduct unbecoming an officer and a gentleman (Wrongfully and dishonorably engage d in an intimate relationship with a person under his care as a physician)
         Article 134, Adultery (A married man, on active duty, who did wrongfully have sexual intercourse with a married woman not his wife)
         Awarded: Suspended:

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:

         “ SECNAVINST 1920.6C ”

The NDRB will recommend to the Commander, 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:           Rehabilitation/Treatment:                 Criminal Records:       
         Personal Documentation:           Community Service:                References:     
         Department of VA letter:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        

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 .


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

Applicant’s Issues

 1.       The Applicant contends h is Commanding Officer was preparing to issue him a General (Under Honorable Conditions) discharge when the Commanding General overruled the Commanding Officer and disapproved a pretrial agreement.
2.       The Applicant contends his e motional status was not taken into consideration during the NJP proceedings .
3 .       The Applicant contends that t hroughout his entire tour and following the NJP proceedings, he continued to remain dedicated and work ed diligently as a fully credentialed provi d er, administrator, and researcher.
4.       Post-service achievements warrant consideration.
Decision

Date: 20 1 1 0407             Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall .
Discussion

 The NDRB, under its responsibility to examine 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 non-judicial punishment for violations o f the Uniform Code of Military Justice (UCMJ): Article 133 ( Conduct unbecoming an officer) and Article 134 (Adultery). The NDRB found evidence indicating the Applicant agreed to accept NJP and submit a request for separation in lieu of trial by court-martial. Based on the offenses committed by the Applicant, his command administratively processed for separation .

: (Decisional) ( ) . The Applicant contends that h is Commanding Officer was preparing to issue him a General (Under Honorable Conditions) discharge when a representative of the Commanding General requested that he submit a pretrial agreement. The Commanding General did not accept the proposed terms of the a greement and disapproved it . Th us , it appears the Applicant is contending the C ommanding G eneral ’ s disapproval of the pretrial agreement and consequent overruling of his Commanding Officer was unfair and the characterization of his discharge was inequitable. T he Applicant was found guilty of conduct unbecoming an officer and adultery. Such offenses can result in an unfavorable character of discharge or , at a maximum , a punitive discharge and possible confinement if adjudicated and awarde d as part of a senctence by a special or general court - martial. His command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge . In addition, the NDRB concluded that although the Commanding General’s overruling of the Commanding Officer might have appear ed unfair to the Applicant , it was not improper. The Commanding General acted well within her authority to disapprove the pretrial agreement and overrule a subordinate commander. The Board determined that the discharge was proper and the assigned characterization of service was equitable and consistent with that given other commissioned officers discharged in similar circumstances. Relief denied.

: (Decisional) ( ) . The Applicant contends his e motional status was not taken into consideration during the proceedings , suggesting his emotional state mitigates his misconduct. According to the Applicant, he received an independent psychiatric examination post service. The examining psychiatrist opined that it appear ed the Applicant was “ suffering symptoms of major depressive disorder, ” and “ his decision to embark on and engage in an illicit relationship was influenced by characterologic defects relating to deep - se at ed feelings of inadequacy, low self-esteem, dependency, and the need for external validation and affirmation. ” T he NDRB concluded that the psychiatrist’s opinion , which was de veloped more than a year after the misconduct occurred, was not sufficient to warrant a n upgrade in characterization. While the Applicant might feel his emotional state at the time was a factor contributing to the misconduct, there was no evidence he could not distinguish between right and wrong. His actions clearly reflect a disregard for the requirements of military discipline and standards of a Naval Officer. Relief denied.



: (Decisional) ( ) . The Applicant contends his discharge was inequitable , because throughout his entire tour and following the NJP proceedings, he continued to remain dedicated and work diligently as a fully credentialed provider, administrator, and researcher. He described four programs and projects he completed that were vital to the Command’s interest , suggesting his misconduct was an isolated incident and his record of service warrants consideration . Despite a service member’s record of service, certain serious offenses, even though isolated, warrant separation from the Navy to maintain proper order and discipline. Violation of Articles 133 and 134 are such offenses. Adultery can result in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. Conduct unbecoming an officer carries the same maximum sentence if adjudicated and awarded by a general court-martial. The Applicant’s command chose not to adjudicate the violations through court-martial proceedings but opted, instead, to use non-judicial punishment, which has a more lenient maximum punishment. Based on the serious nature of the offenses, the NDRB determined the assigned characterization and N arrative R eason for Separation were appropriate. Relief denied.
Issue 4: (Decisional) ( ) . The Applicant submitted articles and case studies he has had published since his discharge as well as articles pending publishing , suggesting his post-service achievements warrant consideration. The NDRB is authorized to consider post-service factors in the re-characterization of a discharge. However, there is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on good conduct and accomplishments in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of service in question. The documentation submitted along with the DD Form 293 was not sufficient to allow for a thorough and effective assess ment of his post-service character and conduct . Although having articles published is a significant accomplishment, h is efforts needed to have been more encompassing. For example, he could have provided evidence of the following: criminal background report, character witness statements, documentation of community or church service, and evidence of financial stability. 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. Relief denied.

 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 reason for separation shall remain .

The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge. The Applicant is directed to the Addendum for additional information.


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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