Upgrade.Vet

NAVY | DRB | 2013_Navy | ND1301535

Original file (ND1301535.rtf) Auto-classification: Denied

ex-LT, USN

Current Discharge and Applicant’s Request

Application Received: 20130717

Characterization of Service Received:

Narrative Reason for Discharge: SUFFICIENT SERVICE FOR RETIREMENT
Authority for Discharge: SECNAVINST 1920.3B

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

Summary of Service

Prior Service:
Active:         19830623 - 19861101 HON
         19861102 - 19910711 HON

Date of Appointment : 19910712     Age: 29
Years Contracted: Indefinite
Date of Discharge: 20030630               Highest Rank : LIEUTENANT
Length of Service: 20 Year(s) 00 Month(s) 08 Day(s)
Education Level:         AFQT : Not legible in record
Officer’s Fitness reports: Available

Awards and Decorations ( per DD 214):      Pistol AM (2) (2) J MUA (4) (2) GCM (2)

Periods of UA /C ONF :

NJP :

- 20001129 :      Article (Failure to obey order or regulation)
         Article 133 (Co nduct unbecoming an officer and gentleman )
                  Awarded: Suspended:
[Extracted from 15 April 2004 Board For Correction Of Naval Records and NAVPERS 1610/2 covering 01 November 1999 to 16 January 2001]

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 :

Pertinent Regulation/Law

A. Secretary of the Navy Instruction 1920.6B (ADMINISTRATIVE SEPARATION OF OFFICERS), effective 13 December 1999 until 14 December 2005, 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 92 (Failure to obey an order or regulation) and Article 133 (Conduct unbecoming an officer and gentleman) .

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

Applicant’s Issues

1. The Applicant contends he served honorably for 20 years .

Decision

Date : 20 1 4 0 212 Location: Washington D.C . R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall SUFFICIENT SERVICE FOR RETIREMENT .

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 Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent sta ndards of equity and propriety. 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 ) and Article 13 3 ( Conduct unbecoming an officer and gentleman ). Based on the offenses committed by the Applicant, he was required to show cause for retention at a B oard of I nquiry (BOI) . The Chief of Naval Personnel notified the Applicant that show cause proceedings would begin on 16 January 2002. The BOI unanimously found the Applicant had committed the offenses and recommended separation with a General (Under Honorable Conditions) discharge on 16 May 2002. The Chief of Naval Personnel approved the BOI’s findings and recommendations on 11 February 2003 , and the recommendation received its final required approval from the Assistant Secretary of the Navy (Manpower and Reserve Affairs) on 06 March 2003. The Applicant was discharged from the Navy on 30 April 2003 with a General (Under Honorable Conditions) discharge for Misconduct (Serious Offense) at 19 years and 10 months of total service. The Applicant was paid for 60 days of leave upon separation. After discharge , the Applicant petition ed for retirement pay and an upgraded discharge characterization. On 15 April 2004 , the Board for Correction of Naval Records approved the Applicant’s petition for retirement benefits by a majority 2-1 vote but denied a discharge characterization upgrade by a vote of 3-0.

: (Decisional) ( ) . The Applicant contends he served honorably for 20 years . In accordance with SECNAV 1920.6 , if an officer’s service has been honest and faithful but significant negative aspects of the officer’s conduct or performance of duty outweigh the positive aspects of the officer’s military record, it is appropriate to characterize that service as General (Under Honorable Conditions). The Applicant’s record of service indicates he was granted retirement status only after petitioning the Board for Correction of Naval Records. The Applicant was originally discharged due to misconduct validated at both nonjudicial punishment a nd through a BOI . On 11 February 2003 , the Chief of Naval Personnel stated the following in his recommendation for the Applicant’s separation , “… (Petitioner) engaged in an unduly familiar relationship with a female enlisted subordinate. By his actions he compromised his authority as a n officer and negatively impacted good order and discipline within the command. Although (Petitioner) has over 19 years of honest and credible naval service, his conduct was a significant departure from that expected of a naval officer. ” After a thorough review of the records, the NDRB determined his discharge characterization was proper and equitable. An upgraded characterization of service would be inappropriate. 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 SUFFICIENT SERVICE FOR RETIREMENT . 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.

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 | ND1301535

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