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NAVY | DRB | 2012_Navy | ND1200522

Original file (ND1200522.rtf) Auto-classification: Denied

ex-OCUI2, USN

Current Discharge and Applicant’s Request

Application Received: 20120109

Characterization of Service Received:

Narrative Reason for Discharge: FAILURE TO COMPLETE COMMISSIONING OR WARRANT PROGRAM

Authority for Discharge : M ILPERSMAN 1910-182 [disposition of enlisted personnel disenrolled from a navy officer candidate program]

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

Summary of Service
Prior Service:
Inactive:         NONE              Active:

Period of Service Under Review:
Date of Current Enlistment: 20081118     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20090702      Highest Rank/Rate: OCUI2
Length of Service:
         Inactive:        Year(s) Month(s) 22 D ay(s)
         Active   Year(s) Month(s) 23 D ay(s)
Education Level:        AFQT: NFIR
Evaluation M arks:         Performance: NFIR         Behavior: NFIR OTA: NFIR

Awards and Decorations ( per DD 214):

Periods of UA /C ONF :

NJP :     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. Naval Military Personnel Manual, (NAVPERS 15560C), Change 16, effective 13 September 2006 until Present,
Article 1910-182, DISPOSITION OF ENLISTED PERSONNEL DISENROLLED FROM A NAVY OFFICER CANIDATE PROGRAM

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 seek s reinstatement into the U .S. Navy as a commissioned o fficer .
2.       The Applicant seeks a change in his reentry (RE) code to RE-1.
3.       The Applicant seeks a change in his N arrative R eason for S eparation.
4.       The Applicant seeks a change in his Separation Code designator (SPD code) .

Decision

Date: 20 1 2 1205             Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall FAILURE TO COMPLETE COMMISSIONING OR WARRANT          PROGRAM .

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 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 did not contain any negative NAVPERS 1070/613 (Page 13) retention counseling warnings, commanding officers’ nonjudicial punishments, or trial by courts-martial. However, following his graduation from Officer Candidate School (OCS) on 17 April 2009 , but prior to receiving a commission, the Applicant was placed in a hold status at Officer Training Command , Newport (OTCN), pending resolution of a medical hold and potential re-designation for commissioning as a Naval Flight Officer. On 25 Jun e 2009, a D isciplinary R eview B oard (DRB) convened to address allegations that the Applicant assault ed a female officer candidate with whom he was romantically involved, as well as an unrelated violation of a direct order for having a female visitor in his barracks room. The DRB recommended immediate attrition from OTCN. The Commanding Officer of OTCN approved the DRB’s recommendation and directed the administrative separation of the Applicant from the Navy on 02 July 2009 . During the personal appearance hearing with the NDRB, the Applicant stated that he did consult with qualified counsel before and during the discharge process.

: (Nondecisional) The Applicant seeks reinstatement into the U.S. Navy as a commissioned officer and a change in his reentry (RE) code to RE-1. 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 B oard for Correction of Naval Records can make changes to reenlistment codes or reinstate a former servicemember . 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.

Issues 3-4: (Decisional) ( ) . The Applicant seeks a change in his N arrative R eason for S eparation and his S eparation C ode designator (SPD code) . The 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 record reflects at the time of his discharge that the Applicant had graduated from OCS but had not yet been commissioned as an Ensign in the United States Navy. Therefore, the Applicant was still in an enlisted status serving as a n O fficer C andidate U nder I nstruction. As a result, he was not discharged pursuant to Secretary of the Navy Instruction 1920.6C (ADMINISTRATIVE SEPARATION OF OFFICERS) but was separated under Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until Present, Article 1910-182 (formerly 3640405), DISPOSITION OF ENLISTED PERSONNEL DISENROLLED FROM A NAVY OFFICER CANDIDATE PROGRAM (INCLUDING THE NAVAL ACADEMY) . This article states that members may be separated from a Naval Officer Candidate Program, including the Naval Academy , when the member is disenrolled or fails to satisfactorily meet any of the requirements for completion of the program in which enrolled, provided the member is not considered qualified for enlisted status. On 25 June 2009, a DRB convened

regarding allegations of assault and orders violations committed by the Applicant . The DRB, by a unanimous vote , determined the Applicant was unfit for service as an officer and should be dropped from OTCN. In addition to the DRB, Naval Station Newport Police initiated a formal investigation in to the alleged assault. 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 issue. After listening to the testimony of the Applicant, his wife, and his counsel, and after reviewing the record of service and all of the documentation submitted by the Applicant for the NDRB hearing, the NDRB determined the separation proceedings were proper and that the characterization of service of Honorable for failure to complete the commissioning program was equitable. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was improperly or inequitably separated. By a majority vote of 4-1 , t he NDRB discerned no impropriety or inequity in the Applicant’s discharge and voted that there should be no change to the Narrative Reason for Separation or Separation Code designator . Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant ’ s summary of service, service record entries, testimony, and discharge process, the Board found the discharge was proper and equitable. Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain FAILURE TO COMPLETE COMMISSIONING OR WARRANT PROGRAM . The Applicant is not eligible for further review from the NDRB. He may petition the Board for Correction of Naval Records using DD Form 149 for further review. Their website is http://www.donhq.navy.mil/bcnr/bcnr.htm . 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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NAVY | DRB | 2012_Navy | ND1200522

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