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NAVY | DRB | 2011_Navy | ND1100140
Original file (ND1100140.rtf) Auto-classification: Denied

ex-LT, USN
Current Discharge and Applicant’s Request
Application Received: 20101013
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: SECNAVINST 1920.6C

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

Summary of Service
Prior Service:
 Inactive:         US N R (DEP)        19960530 - 19960207     Active:            19961202 - 20010208 HON

Period of Service Under Review:
 Date of Appointment : 20010209    Age:
Years Contracted: Indefinite
 Date of Discharge: 20100228      Highest Rank: Lieutenant
Length of Service : Y ear ( s ) M onth ( s ) 20 D a y ( s )
Education Level:        AFQT: 80
Officer’s Fitness Reports: Available

Awards and Decorations ( per DD 214):      Rifle Pistol JSCM JSAM ( 3 ) NEM (4) NDSM KSM (3) GWOTSM ( 4 ) ESWS EAWS

Periods of UA /C ONF :

NJP :
- 20080123 :      Article (Failure to obey a lawful order/regulation)
         Article (False official statement)
         Awarded: Letter of Reprimand Suspended:

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

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 his d ischarge was inequitable , because it was based on an isolated incident in over 13 years of exemplary service.
2.       The Applicant contends his Administrative Separation Board (ASB) lacked due process in that the board president improperly barred him from presenting a legitimate defense and denied him the chance to present matters on retention and discharge characterization.
3.       The Applicant contends the ASB was hop e lessly “ pro - management ” and lacked the appearance of fairness.
4.       The Applicant contends the “ Bridging the Gap ” after-board session corroborated prejudgment and bias.
5.       The Applicant contends a n attitude of antagonism permeated the A pplicant ’ s chain of command.
6.       The Applicant contends that g iven the board’s finding that he made no false official statement, a G eneral discharge is untenable.
7.       The Applicant contends his post-service conduct warrants consideration for upgrading his discharge to Honorable.

Decision

Date: 20 1 1 1107             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 Applicant’s record of service did not include any NAVPERS 1070/613 (Page 13) warnings or trials by court-martial for violations of the Uniform Code of Military Justice (UCMJ). However, it did include one non-judicial punishment (NJP) for violation of the UCMJ: Article 92 (Failure to obey order or regulation, 1 specification) and Article 107 (False official statement, 1 specification). Based on the offenses committed by the Applicant, command administratively processed for separation. The Applicant appeared before a Board of Inquiry (BOI) where he was represented by qualified counsel. By a vote of 3 to 0, the BOI recommended that the Applicant be separated from the Naval Service on the basis of Misconduct and Substandard Performance and that the service be characterized as General.
: (Decisional) ( ) . The Applicant contends his discharge was inequitable , because it was based on an isolated incident in over 13 years of exemplary service. Despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Navy to maintain proper order and discipline. Violation of Articles 92 and 107 , especially when committed by a commissioned officer, are such offense s . Failure to obey an order or regulation and making a false official statement 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. However, h is command chose not to adjudicate the violation s through court-martial proceedings but opted to use NJP instead . The BOI later determined that the Applicant did not make a false official statement. The BOI also voted unanimously to recommend separation from the Navy with a General (Under Honorable Conditions) characterization of service. The Separation Authority determined the Applicant had no potential for further Naval S ervice and approved the recommendation for separation. The NDRB determined that the Applicant’s failure to obey an order or regulation was conduct that was not becoming of an officer and, therefore, warranted separation from the Navy with a General (Under Honorable Conditions) discharge . However, after considering the facts and circumstances surrounding the mishandling of classified material, the NDRB did not believe the misconduct was so egregious that “MISCONDUCT” should appear on his DD Form 214 and concluded that the assigned Narrative Reason for Separation was not appropriate. Since no other reason set forth in the Naval Military Personnel Manual is appropriate , the NDRB determined that the Narrative Reason for Separation shall change to Secretarial Authority. Partial relief granted.



Issue s 2 - 4 : (Decisional) ( ) . The Applicant contends the B O I lacked due process in that the board president improperly barred him from presenting a legitimate defense and denied him the chance to present matters on retention and discharge characterization. He also contends the panel was hopelessly “ pro-management ” and lacked the appearance of fairness and the board’s prejudgment and bias w ere corroborated during the “ Bridging the Gap ” session following the board. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his claim. The documentary evidence and testimony provided by the Applicant does not overcome the government’s presumption of regularity where th ese issue s are concerned . The NDRB concluded that there were no improprieties with respect to the BOI and, therefore, concluded that the Applicant received a fair BOI and that relief based on this issue was not warranted. Relief denied.

Issue 5 : (Decisional) ( ) . The Applicant contends a n attitude of antagonism permeated the chain of command. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his claim. The documentary evidence and testimony provided by the Applicant does not overcome the government’s presumption of regularity where this issue is concerned . The NDRB determined that relief based on t his issue was not warranted. Relief denied.

Issue 6: (Decisional) ( ) . The Applicant contends that the BOI’s finding that he made no false official statement rendered a G eneral discharge untenable. A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record. Even though the BOI determined that the Applicant did not make a f alse off icial statement, t he NDRB determined that the Applicant’s failure to obey an order or regulation was conduct unbecoming of an officer and, therefore, warranted separation from the Navy with a General (Under Honorable Conditions) discharge as it was a significant negative aspect of his service.

Issue 7 : (Decisional) ( ) . The Applicant contends his post-service conduct warrants consideration for upgrading his discharge to Honorable. 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 or achievements 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 enlistment in question. Along with his DD Form 293, the Applicant submitted evidence of his post-service conduct and achievements, which included employment and furthering his education. A lthough the Applicant’s accomplishments are commendable, the Board concluded that neither his documentation nor his testimony regarding his post-service activities contained sufficient information to effectively evaluate his post-service character and conduct to determine if they demonstrate his in-service misconduct was an aberration and not indicative of his overall character. The Board determined that relief based on this issue , in conjunction with his in-service conduct , was not warranted. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s testimony, s ummary of s ervice, r ecord e ntries, and d ischarge p rocess, the Board found The Board determined that the awarded characterization of service shall , but the narrative reason for separation shall change to . The Applicant is no longer eligible for additional reviews or hearings by the NDRB. He may petition the Board for Correction of Naval Records, 2 Navy Annex, Washington, DC 20370-5100, for further review using DD Form 149.


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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