Upgrade.Vet

NAVY | DRB | 2012_Navy | ND1201130

Original file (ND1201130.rtf) Auto-classification: Denied

ex-LTJG, USN

Current Discharge and Applicant’s Request

Application Received: 20120423

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: USN (ROTC)     20000916 - 20040929     Active:

Period of Service Under Review:
Date of Appointment : 20040930     Age: 23
Years Contracted : Indefinite
Date of Discharge: 20080806       Highest Rank : LTJG
Length of Service: Year(s) Month(s) 08 D ay(s)
Education Level:         AFQT: NFIR
Officer’s Fitness reports: Available

Awards and Decorations ( per DD 214):

Periods of UA /C ONF :

NJP :

- Date NFIR :     Article 133 (Conduct unbecoming an officer and gentlemen)
         Article (General A rticle, Fraternization)
         Awarded: Suspended:

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 1920.6C ”

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 seeks to improve his employment opportunities.
2 .        The Applicant seeks to improve his educational opportunities.
3 .       The Applicant contends h omesickness , loneliness , and depression mitigate his misconduct . He also contends his in-service conduct warrants consideration for an upgrade.
4.       The Applicant contends a lax environment at his previous command in regards to officer/enlisted interactions led to his misconduct.
5.       The Applicant contends his continued commitment and impe n ding marriage to the former S ailor with whom he was involved warrants an upgrade.

Decision

Date : 20 1 3 0213             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. The Applicant’s record of service included for o f the Uniform Code of Military Justice (UCMJ): Article 133 (Conduct unbecoming an officer and gentlemen) and Article (General A rticle, Fraternization). The Applicant acknowledged complete understanding of the USS BARRY fraternization policy and definition of fraternization on 26 June 2007. Based on the offenses committed by the Applicant, command administratively processed for separation. When notified of separation processing, the Applicant submitted a qualified resignation a cknowledg ing that if accepted, he would receive a General (Under Honorable Conditions) discharge.

: (Nondecisional) The Applicant seeks to improve his employment and 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.

: (Decisional) ( ) . The Applicant contends homesickness, loneliness, and depression mitigate his misconduct. He also contends his in-service conduct warrants consideration for an upgrade. The NDRB recognizes that serving in the military is challenging. Most servicemembers, however, serve honorably and therefore earn their Honorable discharges. In fairness to those servicemembers, commanders and separation authorities are tasked to ensure that undeserving Sailors and Naval Officers receive no higher characterization than is due. There is no evidence in the record, nor did the Applicant provide any documentation, to indicate he attempted to use the numerous services available for servicemembers who undergo personal problems during their service , such as the Navy Chaplain, Medical or Mental Health professionals, Navy Relief Society, or even the Red Cross. Turning to fraternization with a fellow crewmember is not an acceptable response to homesickness, loneliness, and depression. Also, d espite a servicemember’s prior record of service, certain serious offenses warrant separation from the to maintain proper order and discipline. Violation of Articles 133 and 134 are two such offenses that warrant separation regardless of grade, performance, or time in service. The NDRB determined the Applicant’s personal problems were not mitigating factors in his misconduct and found the characterization of the Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances. Relief denied.

4 : (Decisional) ( ) . The Applicant contends a lax environment at his previous command in regards to officer/enlisted interactions led to his misconduct. While the Applicant’s previous command may have had a more relaxed environment with respect to officer/enlisted interactions, the command most certainly did not condone fraternization between officer and enlisted. T he Applicant acknowledged complete understanding of the USS BARRY fraternization policy and definition of fraternization on 26 June 2007. E ven if the Applicant could show his previous command had a lax environment, it would neither amount to a justification nor to a defense for the Applicant’s own misconduct. The NDRB determined the Applicant’s contention to be without merit. Relief denied.

5: (Decisional) ( ) . The Applicant contends his continued commitment and impe n ding marriage to the former S ailor with whom he was involved warrants an upgrade. The fact that the relationship continued after the Applicant was separated from the Navy does not provide a basis for mitigation or consideration as an extenuating circumstance . Violations of UCMJ Article s 133 and 134 are considered serious offenses for which a punitive discharge is authorized. The Applicant submitted a qualified resignation in which he stated, “Having failed in my duty to uphold the traditions of the Navy and the responsibilities laid upon me, in the best interest of the Navy, I respectfully request my resignation be accepted. ” While the Applicant may feel that his continued relationship warrants an upgrade , it does not mitigate his disobedience of the orders and directives that regulate good order and discipline in the Naval Service, demonstrating he was unsuitable for further service. 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.

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 s 133 and 134.

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 | ND1201130

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