Upgrade.Vet

NAVY | DRB | 2012_Navy | ND1200814

Original file (ND1200814.rtf) Auto-classification: Denied

ex-LT, USN

Current Discharge and Applicant’s Request

Application Received: 20120224

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:       R ESIGNATION

Summary of Service

Prior Service:
Inactive: USN (ROTC)     19970428 - 20000511     Active:

Period of Service Under Review:
Date of Appointment : 20000512     Age: 22
Years Contracted : Indefinite
Date of Discharge: 20101031       Highest Rank : LT
Length of Service: Year(s) Month(s) 20 D ay(s)
Education Level:         AFQT: NFIR
Officer’s Fitness reports: Available

Awards and Decorations ( per DD 214):      Rifle Pistol JSAM (2)

Periods of UA /C ONF :

NJP :

- 20090824 :      Article 133 ( Conduct unbecoming an officer and gentleman )
         Article (General A rticle, adultery)
         Awarded: Suspended:

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

NDRB Documentary Review Conducted (date):        20111031
NDRB Documentary Review Docket Number:   ND11-01226
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.

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 .

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

Applicant’s Issues

1.       The Applicant contends his discharge was improper due to illegal/improper actions of his command’s investigation of alleged misconduct.
2.       The Applicant contends his discharge was inequitable, because his Commanding Officer had accepted and endorsed his unqualified request for resignation with an Honorable discharge.
3.       The Applicant contends P ost-Traumatic Stress Disorder (P TSD ) , combined with prescription narcotics for an ankle injury , mitigate d his misconduct.
4 .       The Applicant contends his exceptional post-service conduct warrants an Honorable characterization .
5.       The Applicant contends he warrants an upgrade based on case law that reveals another officer’s retention in the Navy with similar misconduct.
Decision

Date: 20 1 3 0422             Location: Washington D.C .        R epresentation :

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

Discussion

As a result of the Applicant’s claim of PTSD, in accordance with U.S. Code, Title X, Section 1553 (d)(1), the Naval Discharge Review Board included a member who is a physician, clinical psychologist, or psychiatrist. In accordance with section 1553 (d)(2), the service secretary expedited a final decision and accorded the case sufficient priority to achieve an expedited resolution. The Applicant’s service record documents completion of a deployment to the Combined Air Operations Center, Al Udeid Air Base, Qatar from September 2006 to January 2007 in support of Operation IRAQI FREEDOM.

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 for o f the Uniform Code of Military Justice (UCMJ): Article 133 ( Conduct unbecoming an officer and gentleman) and Article (General A rticle, adultery) . Based on the offenses committed by the Applicant, the Commander, Navy Personnel Command (PERSCOM) directed that the Applicant show cause for retention before a Board of Inquiry (BOI) . On 23 Jun e 2010, the Applicant acknowledged the rights afforded to him. Statements in the record reveal the Applicant altered his acknowledgment of rights form to give himself the option to submit a qualified resignation for an Honorable characterization and attempts to retrieve the original a cknowledgment of r ights form, which specified a General (Under Honorable Conditions) discharge, were not responded to by the Applicant. On 11 Aug ust 2010, the BOI was convened and resulted in the following findings : B y 3-0 vote, the Applicant committed Conduct u nbecoming an o fficer and g entleman (Article 133) and Adultery (Article 134); by 3-0 vote, the Applicant failed to conform to prescribed standards of military deportment, as evidenced by PERSCOM letter 10 Jun e 2010; and by 3-0 vote, that the Applicant be separated with a n Under Honorable Conditions (General) characterization . On 20 Oct ober 2010, in conjunction with the 6 Oct ober 2010 Secretary of the Navy decision, Commander, Navy Personnel Command directed that the Applicant be separated Under Honorable Conditions (General) .

: (Decisional) ( ) . The Applicant contends his discharge was improper due to illegal/improper actions of his command’s investigation of alleged misconduct. The Applicant specified that command improprieties included: violation of his Constitutional rights (search and seizure; deprived of personal firearms for 14 to 15 months; failure to administer Article 31 rights; interrogations made while Applicant was under the influence of narcotic pain medication; false statements made by officers in the command; use of non-admissible and insufficient evidence used during NJP; and criminal behavior and covert actions of officers in conducting a command investigation , including illegal search and seizure at his private residence). The NDRB is not an investigative body, and allegations of command legal or administrative impropriety should be made to the Naval Inspector General’s Office. Regardless, the NDRB d id complete a thorough review of the circumstances that led to the Applicant’s discharge and the discharge process to ensure discharge met the pertinent

standards of equity and propriety . The record contained no evidence of any wrongdoing by the Applicant’s command or anyone else in the discharge process. The NDRB presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. The Applicant did not submit any documentation to rebut any presumption of regularity in governmental affairs. Accordingly, t he NDRB discerned no impropriety or inequity in the discharge process. Relief denied.

: (Decisional) ( ) . The Applicant contends his discharge was inequitable, because his Commanding Officer had accepted and endorsed his unqualified request for resignation with an Honorable discharge. The Applicant’s commanding o fficer had no authority to approve his request for resignation with an Honorable characterization. A review of the records shows that he did not approve the Applicant’s request, but he did properly include an endorsement and forwarded it up the chain of command to the Separation Authority ( Secretary of the Navy ) , who makes the final decision on an officer’s characterization of service. T he Separation Authority determines whether the allegations in the notification of the basis for separation are substantiated by the evidence. There is no provisional guarantee that a n officer will receive anything that a local commanding officer recommends or endorses . The record indicates the Applicant was directed to show cause for retention before a BOI as a result of being found guilty of Adultery (Article 134) and Conduct u nbecoming an o fficer (Article 133) at NJP. After reviewing the Applicant’s service records and the misconduct for which he was separated, the NDRB determined the Applicant ’s characterization of service was warranted, especially considering the special trust and confidence placed in Naval Officers, the service discrediting nature of his misconduct, and the severe effect on unit morale and cohesion when an officer violates the trust of a fellow officer. Relief denied.

: (Decisional) ( ) . The Applicant contends PTSD, combined with prescription narcotics for an ankle injury , mitigated his misconduct. In determining discharge characterization of service, the Applicant’s conduct forms the primary basis for consideration. The Applicant’s in-service conduct included violations of UCMJ Articles 133 and 134, which were willful failures to meet the requirements of his service honorably. The Applicant’s post-service documentation provided by the Applicant supports his contention that he suffered from PTSD in service. While the Applicant may feel that PTSD and prescription narcotics for his ankle injury were the underlying cause s of his misconduct, the record clearly reflects his conduct was willful and demonstrated he was unfit for further service. 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. The NDRB determined that PTSD and prescription narcotics were not reasonable cause s for or mitigation of the Applicant’s serious and willful misconduct. Relief denied.

4 : (Decisional) ( ) . The Applicant contends his exceptional post-service conduct warrants an Honorable characterization. The NDRB considers post-service conduct to determine if the misconduct committed during active duty was indicative of the Applicant ’ s character or an aberration. However, there is no law or regulation that provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of service in question. The Applicant provided documentary evidence to include: State of Florida Bar examination record, criminal records check, law school transcripts, law school student leadership position, State of Virginia law intern credential, evidence of financial stability, character witness statements, church membership, and a child’s birth certificate. The A pplicant’s efforts to improve his life are noteworthy . However, a fter careful review of the Applicant ’ s post-service documentation and official service record, and taking into consideration the facts and circumstances surrounding his administrative separation for officer misconduct, the NDRB determined that relief wa s not warranted . Relief denied.

5 : (Decisional) ( ) . The Applicant contends he warrants an upgrade based on case law that reveals another officer’s retention in the Navy with similar misconduct. Secretary of the Navy Instruction 5420.174D establishes the NDRB’s scope and responsibility to review and make determinations on the propriety and equity of service discharges. Since each discharge review is conducted on a case-by-case basis and considers all the relevant facts specific to a particular case, attempts to reference other similar cases and then apply standard generic results is erroneous and does not comply with the instructions that govern the conduct of the discharge review process. Accordingly, the NDRB found the Applicant’s issue to be without merit and did not provide a basis for relief. 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 is not eligible for any further reviews from the NDRB. The Applicant may petition the Board for Correction of Naval Records for further review using DD Form 149. Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm.

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 | ND1200814

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