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NAVY | DRB | 2012_Navy | ND1201907
Original file (ND1201907.rtf) Auto-classification: Denied

ex-ENS, USN
Current Discharge and Applicant’s Request
Application Received: 20120907
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 ( USNA )        20040630 - 20080522     Active:  

Period of Service Under Review:
Date of Appointment : 20080523    Age:
Years Contracted : Indefinite
Date of Discharge: 20100630      Highest Rank: ENS
Length of Service: Y ear( s ) M onth( s ) 08 D a y ( s )
 Education Level:        AFQT: NFIR
Officer’s Fitness reports: Available

Awards and Decorations ( per DD 214):      Rifle Pistol

Periods of UA /C ONF :

NJP :

- 20090922 :      Article (Failure to obey an order or regulation , 20090724 )
         Article 133 (Conduct unbecoming an officer , 20090811 )
         Awarded: Suspended:
         [ * Extracted from JAGMAN excerpts and document s submitted by the A pplicant]

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:

         “ Secretary of the Navy Instruction 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 .       Applicant contends his post-service achievements warrant consideration for a discharge upgrade.
2 .       Applicant contends his discharge was improper and inequitable based on the specific facts and circumstances involv ed .

Decision

Date: 20 1 2 1004             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 complete d a thorough review of the circumstances that led to his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included , resulting from a command investigation, for o f the Uniform Code of Military Justice (UCMJ): Article 92 ( Failure to obey an order or regulation , wrongfully facilitated the flight of a civilian person in a Navy T-34C aircraft without proper authorization, 24 July 2009 ) and Article 133 (Conduct unbecoming an officer , with intent to deceive, make to CTW-4 Chief of Staff, a US Navy Commander, an official statement that he had not flown his civilian girlfriend in a Navy T-34C aircraft while on detachment in San Diego, CA, 11 August 2009 ). There was no evidence of NAVPERS 1070/613 (Page 13) retention warnings or trial s by courts-martial. Per Navy regulations, Commander, Navy Personnel Command (PERSCOM) was informed of the adjudicated o fficer NJP ( and subsequent request for and denial of clemency) on or about 23 November 2009. Based on the offense s committed by the Applicant (as evidenced by the NJP findings) and the subsequent command investigation reports from the Chief of Naval Air Training and Chief of Naval Air Forces, P ERSCOM notified the Applicant of processing for administrative separation from the Navy. When notified of administrative separation processing using the procedure on 10 February 2010 , the Applicant elected to consult with a qualified counsel and submit a written statement . He was not directed to show cause for retention before a Board of Inquiry. However, PERSCOM made a recommend ation to the Assistant Secretary of the Navy (Manpower and Reserve Affairs) that the Applicant be separated from the Navy due to Misconduct. After considering the available evidence and the chain of command endorsements recommending retention of the Applicant in the U.S. Navy and his continuation in the student naval aviator training syllabus, the Assistant Secretary of the Navy (Manpower and Reserve Affairs) directed that the Applicant be separated with a General (Under Honorable Conditions) discharge due to Misconduct (Other). The Applicant was discharged from the Navy on 30 Jun e 2010 as directed.

: (Decisional) ( ) . The Applicant contends his post-service achievements warrant consideration for a discharge upgrade. The NDRB considers post-service conduct in order 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 enlistment in question. The Applicant provided a witness statement, character reference letters, training and education certificates, evidence of financial stability, employment verification and employer letters of reference, criminal background checks, verification of community service involvement, and a personal statement as evidence of his post-service accomplishments. Although his efforts to improve his life are noteworthy, c ompletion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis. Although the Applicant’s post-service achievements are commendable, the Board determined this issue did not solely provide a basis upon which relief could be granted. Relief denied.




: (Decisional) ( ) . The Applicant contends his discharge was improper and inequitable based on the specific facts and circumstances involv ed . The NDRB conducted a detailed and thorough analysis of the Applicant’s record of service, the substantial documentary evidence contained within the Command and Inspector General I nvestigations (reports) conducted subsequent to the events central to this case, and the administrative separation process to include the chain of command endorsements and recommendations submitted to the Commander, Navy Personnel Command. After exhaustive review and careful consideration of the specific facts and circumstances surrounding this case, the NDRB found, although the Applicant’s administrative separation from the Navy was administrative ly and legally correct , the totality of the available evidence combined with questionable pre - and post - event conduct from the other Naval officers involved (senior in responsibility and in rank to the Applicant, responsible for the safe and orderly conduct of detachment flight operations , and responsible to provide the leadership and professional example required of officers commissioned via the special trust and confidence placed in them by the President of the United States) along with their subsequent suspect and inconsistent testimony provided to the investigating officer s , that the preponderance of the evidence did not support the decision to administratively separate the Applicant from the Naval service with a General discharge for Misconduct . Accordingly, the Board determined the Applicant ’s issue to have merit and warranted relief based on the grounds of equity. The NDRB voted unanimously to upgrade the Applicant’s discharge to Honorable and change the narrative reason for separation to Secretarial Authority. Relief granted.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries, the administrative separation p rocess, and the significant documentary evidence submitted by the Applicant, the Board found the discharge was inequitable at the time of his separation. Accordingly, the awarded characterization of service shall and the narrative reason for separation shall change to . 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 .



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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