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NAVY | DRB | 2013_Navy | ND1300728

Original file (ND1300728.rtf) Auto-classification: Denied

ex-ENC, USN

Current Discharge and Applicant’s Request

Application Received: 20130212

Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

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

Summary of Service
Prior Service:
Inactive:         US N R (DEP)        19911230 - 19920920     Active:          19920921 - 19980115
                                             19980116 - 20030904
                                             20030905 - 20051201
                                             20051202 - 20100909

Period of Service Under Review:
Date of Current Enlistment: 20100910     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20120302      Highest Rank/Rate: ENC
Length of Service: Y ear( s ) M onth( s ) 22 D a y ( s )
Education Level:        AFQT: 52
Evaluation M arks:         Performance: 4.0 ( 3 )      Behavior: 2.3 ( 3 )        OTA: 2.81

Awards and Decorations ( per DD 214):      Rifle Pistol DMSM (5) (2) (5) (6) (3) (2) (2) (5) NRSR CGSOSR CGUC FLoC (4) SECNAV LoC
Periods of UA /C ONF :

NJP :

- 20110108 :      Article (Failure to obey order or regulation , 3 specifications )
         Specification 1: Fail to obey a lawful general order, to wit: SECNAVINST 5300.26D, Department of the Navy P olicy on Sexual Harassment
         Specification 2: Fail to obey a lawful general order, to wit: SECNAVINST 5300.26D, Department of the Navy P olicy on Sexual Harassment
         Specification 3 : Fail to obey a lawful general order, to wit: OPNAVINST 5370.2C, Navy Fraternization Policy on Sexual Harassment
         Article ( General A rticle, adultery)
         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 :

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

Applicant’s Issues

1 .       The Applicant contends the fact - finding determinations made by the administrative separation board are erroneous.
2 .        The Applicant contends the administrative separation board failed to properly apply Naval Military Personnel Manual ( MILPERSMAN ) Article 1910-212.
3 .       The Applicant contends the administrative separation board failed to give sufficient weight to the Applicant’s overall record of service.
4 .        The Applicant contends there was unlawful command influence over the Chief’s Mess.
5 .        The Applicant contends others received less harsh punishment.

Decision

Date : 20131030             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 92 (Failure to obey order or regulation , 3 specifications : Specification s 1 -2 : Fail to obey a lawful general order, to wit: SECNAVINST 5300.26D, Department of the Navy P olicy on Sexual Harassment and Specification 3: Fail to obey a lawful general order, to wit: OPNAVINST 5370.2C, Navy Fraternization Policy on Sexual Harassment ) and Article 134 (General A rticle, adultery) . Based on the offenses committed by the Applicant, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant exercis ed rights to consult with a qualified counsel, submit a written statement, and request an administrative board . The administrative board voted 3-0 that the preponderance of the evidence supported the Applicant had committed Misconduct (Commission of a Serious Offense) based on Sexual Harassment, Fraternization, and Adultery. In addition, the administrative board voted 3-0 to recommend separation Under Other Than Honorable Conditions for Misconduct (Serious Offense) . The Separation Authority approved the recommendations and discharged the Applicant accordingly.

Issues 1-3 : (Decisional) ( ) . The Applicant contends the fact - finding determinations made by the administrative separation board are erroneous. The Applicant specifically contends that the board findings of a sexual relationship between him and an ENFN are based solely on the Applicant’s admission , and this integrity should be used to evaluate his other statements and rehabilitative potential. In addition, the Applicant contends the charges are not supported by the preponderance of the evidence. The Applicant also contends the administrative separation board failed to properly apply MILPERSMAN Article 1910-212 and failed to give sufficient weight to the Applicant’s overall record of service. The NDRB presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. The Applicant was found guilty at NJP of violating UCMJ Articles 92 and 134. In addition, t he Applicant’s administrative board voted 3-0 that the preponderance of the evidence supported the Applicant had committed Misconduct (Commission of a Serious Offense) based on Sexual Harassment, Fraternization, and Adultery. The evidence provided by the Applicant does not overcome this presumption or demonstrate the determinations made by the administrative board are erroneous . The record clearly shows the Applicant admitted to committing fraternization and adultery, both of which would warrant a punitive discharge if adjudicated at trial by court-martial . However, t he command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge. T he NDRB discerned no impropriety or inequity in the discharge proceedings. Based on the Applicant’s record of service in his current enlistment , the NDRB determined the Applicant engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service, and the awarded characterization of service was warranted. Relief denied.

4 : (Decisional) ( ) . The Applicant contends there was unlawful command influence over the Chief’s Mess. The record contained no evidence of any wrongdoing by the Applicant’s commanding officer 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 evidence provided by the Applicant does not overcome this presumption. The NDRB determined the Applicant’s discharge was proper and equitable. Relief denied.

5 : (Decisional) ( ) . The Applicant contends others received less harsh punishment. The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service. Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy. A preponderance of the evidence reviewed supports the conclusion that the Applicant committed a serious offense, that separation from the Naval Service was appropriate, and an Under Other Than Honorable Conditions discharge was warranted. 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. Naval Military Personnel Manual, (NAVPERS 15560C), Change 36, effective 18 August 2011 until Present, Article 1910-142, SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

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 92 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 | 2013_Navy | ND1300728

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