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NAVY | DRB | 2010_Navy | ND1001309
Original file (ND1001309.rtf) Auto-classification: Denied

ex-LCDR, USN
Current Discharge and Applicant’s Request
Application Received: 20100422
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: SECNAVINST 1920.6A

 Applicant’s Request:      Characterization change to:      
         Narrative Reason change to:       VOLUNTARY RESIGNATION OF COMMISSION

Summary of Service

 Prior Service:
 Inactive: USNR   198 50528 - 19 870824     Active: 

Period of Service Under Review:
 Date of Appointment : 19870825     Age:
Years Contracted : Indefinite
Date of Discharge: 19970630       Highest Rank : LCDR
Length of Service: 09 Year(s) Month(s) 06 D ay(s)
Education Level:         AFQT: NFIR
Officer’s Fitness reports: Available

Awards and Decorations ( per DD 214):      JMUA

Periods of UA /C ONF :

NJP : [Extracted from NCIS report]
19961018: Article ( Specific Article violation not identified, although it centers on indecent exposure to young girls at          a
Value City Department Store , which the NDRB opined to be Article 120 – Indecent exposure)
                   Awarded: Official Letter of R eprimand

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 1920.6A ”

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:                  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. The Applicant contends his discharge is inequitable , because it was based on an isolated incident in 9 1/2 years of service.
2. The Applicant contends his discharge is inequitable , because it does not reflect the endorsement of his Commanding Officer.
3 . The Applicant contends his discharge is inequitable , because he was solicited to work as a civilian consultant by the Navy after his discharge .
4 . The Applicant believes his post-service support to his community is worthy of consideration .

Decision

Date: 20110 804 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 governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Board did complete a thorough review of the circumstances which led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included for o f the Uniform Code of Military Justice (UCMJ): Article (Specific Article violation not identified, although it centers on indecent exposure to young girls at a Value City Department Store , which the NDRB opined to be Article 120 – Indecent exposure) . The only reason the State’s Attorney did not press criminal charges against the Applicant is because the parents of the alleged victim declined to allow their daughter to be interviewed. The incidents were video taped by store security and a copy of the surveillance tape was provided to the command. Based on the offense committed by the Applicant, his command administratively processed for separation. The NDRB did not have the Applicant’s ad ministrative separation package, but knows he retained civilian counsel and chose not to show cause for retention by appearing before a Board of Inquiry.

: (Decisional) ( ) . The Applicant contends his discharge is inequitable , because it was based on an isolated incident in 9 1/2 years of exemplary service with no other adverse actions. Despite a Sailor’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Naval Service in order to maintain proper order and discipline. 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. There is no evidence of impropriety or inequity in the Applicant’s discharge. The Applicant was found guilty at NJP and awarded an Official Letter of Reprimand. Additionally, he chose not to show cause for retention. The Applicant’s conduct was clearly unbecoming of a Naval Officer. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

: (Decisional) ( ) . The Applicant contends his discharge is inequitable , because it does no t reflect the endorsement of his immediate Commanding Officer. The Secretary of the Navy has the ultimate authority to assign characterization of service for the resignations of Naval officers. Even though the Applicant’s CO was a senior admiral, it was not his decision as to what characterization of service the Applicant should receive. It is likely that the Secretary of the Navy took his CO’s recommendation into account when assigning a General (Under Honorable Conditions) characterization of service. Other personnel with misconduct similar to the Applicant’s would typically receive an Under Other Than Honorable Conditions discharge. T he NDRB determined that the discharge was proper and warranted. Relief denied.






: (Decisional) ( ) . The Applicant contends his discharge is inequitable , because he was solicited to work as a civilian consultant on a Navy program that he helped develop for the Marine Corps years after his discharge . The NDRB does not see how this has any bearing on the Applicant’s misconduct while in service. The subsequent hiring of the Applicant to work on a Navy project is not an official endorsement of the Applicant. The NDRB sees no mitigation to his misconduct because he was subsequently hired to consult on a Navy project. Relief denied.

4 : (Decisional) ( ) . The Applicant believes his post-service support to his community is worthy of consideration. The NDRB found that the Applicant had submitted credible evidence indicative of good post-service conduct. However, after a complete review of the entire record, including the evidence submi tted by the Applicant, the NDRB determined that the discharge was appropriate in light of the nature and seriousness of the Applicant’s misconduct, and that the evidence of post-service conduct was not sufficient to convince the Board that an upgrade was appropriate at this time. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, 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, specifically the paragraphs titled Additional Reviews, and Post-Service Conduct .

Pertinent Regulation/Law

 A. Secretary of the Navy Instruction 1920.6A (ADMINISTRATIVE SEPARATION OF OFFICERS), effective 21 November 1983 until 12 December 1999 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 15 October 1981.
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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