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NAVY | DRB | 2012_Navy | ND1200388
Original file (ND1200388.rtf) Auto-classification: Denied

ex-LTJG, USN
Current Discharge and Applicant’s Request
Application Received: 20111212
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: SECNAVINST 1920.6C

 Applicant’s Request:      Characterization change to:      
         Narrative Reason change to:       COMPLETION OF OBLIGATED SERVICE
        
Summary of Service
Prior Service:
Inactive: USN (ROTC)     NONE      Active: 

Period of Service Under Review:
 Date of Appointment : 20070525     Age: 22
Years Contracted : Indefinite
Date of Discharge: 20110228       Highest Rank : LTJG
Length of Service: Year(s) Month(s) 04 D ay(s)
Education Level:         AFQT: NFIR
Officer’s Fitness reports: Available
Awards and Decorations ( per DD 214):      Pistol , , , , (3) , , SWO ,

Periods of UA /C ONF :

NJP :
- 20090828 :      Article (Drunken operation of a vehicle, aircraft, or vessel)
         Awarded: 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:                  Oth er Documentation:    
                  Additional Statements :
         From Applicant:            From /To Representation:            From /To Congress m ember :        

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 .

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 111 .


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

Applicant’s Issues

 1.        The Applicant contends his good military character was not briefed to the Assistant Secretary of the Navy (Manpower and Reserve Affairs), and his good military character would have justified denying his separation or sending him to a Board of Inquiry for further findings.
2.       The Applicant contends his 28 August 2009 nonjudicial punishment (NJP) is fatally defective in that it provided no evidence to the Show Cause Authority to base a determination that misconduct or substandard performance of duty had occurred.
3.       The Applicant contends he was denied due process when the Show Cause Authority acted on the 28 August 2009 NJP that was not final because a written Punitive Letter of Reprimand was never delivered to the Applicant.

Decision

Date : 20 1 2 1119             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 discharg e 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. T he Board did complete a thorough review of the circumstances that 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 111 ( Drunken operation of a vehicle, aircraft, or vessel). Based on the offense committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant acknowledged his rights and elected to submit a written statement. The Applicant was not entitled to an administrative board.

: ( D ecisional) (Propriety/Equity) RELIEF NOT WARRANTED. The Applicant contends his good military character was not briefed to the Assistant Secretary of the Navy (Manpower and Reserve Affairs), and his good military character would have justified denying his separation or sending him to a Board of Inquiry for further findings. The Applicant further contends that if the statement “Five unrestricted line officers now serving in command positions aboard U.S. Navy ships have strongly recommended LTJG [Applicant] for retention in the Naval Service (see enclosures contained in LTJG [Applicant] statement and enclosure 1 of my letter)” had been included in the briefing letter, then the Assistant Secretary of the Navy would have had a complete picture of the Applicant’s good military character and performance. The NDRB completed a thorough review of the procedures followed in the administrative separation of the Applicant and discerned no impropriety or inequity. He was properly notified, and all officials in the chain of command properly endorsed the separation recommendation. The Applicant’s characterization of service was completely in line with what others received for similar misconduct. Relief denied.

: (Decisional) ( ) . The Applicant contends his 28 August 2009 NJP is fatally defective in that it provided no evidence to the Show Cause Authority to base a determination that misconduct or substandard performance of duty had occurred. The record of evidence indicates the Applicant was afforded his rights during his NJP and administrative separation process and that he knowingly waived some of his rights in order to accept NJP instead of demanding trial by court-martial. The Applicant was notified of administrative separation for reason of (a) commission of a serious military or civilian offense and (b) substandard performance of duty. The primary reason for separation was for commission of a serious military or civilian offense for which he wa s found guilty of violation of A rticle 111 at NJP. In accordance with the Naval Military Personnel Manual, servicemembers may be separated based on the commission of a serious military or civilian offense when the commanding officer believes the specific circumstances of the offense warrant separation and the offense would warrant a punitive discharge if adjudicated at trial by court-martial for the same or closely related offense. Commission of a serious offense does not require adjudication by non - judicial or judicial proceedings or civilian

conviction, however, the offense must be substantiated by a preponderance of evidence. The Applicant’s arrest for driving under the influence with a BAC of .16 on 2 August 2009 provided the preponderance of the evidence that he violated UCMJ Article 111. The statements and documents provided by the Applicant do not refute the presumpti on of regularity in this case. The NDRB determined no impropriety or inequity in the Applicant’s separation proceedings. Relief denied.
: (Decisional) ( ) . The Applicant contends he was denied due process when the Show Cause Authority acted on the 28 August 2009 NJP that was not final because a written Punitive Letter of Reprimand was never delivered to the Applicant. The absence of a punitive letter in the member’s record does not change the finding of guilt for violating UCMJ Article 111 at NJP. The NDRB determined the Applicant received due process during the separation process and was properly and equitably discharged Under Honorable Conditions (General) for Misconduct (Other). 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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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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