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NAVY | DRB | 2014_Navy | ND1401075
Original file (ND1401075.rtf) Auto-classification: Denied

ex-LTJG, USN
Current Discharge and Applicant’s Request
Application Received: 20140506
Characterization of Service Received:
Narrative Reason for Discharge: UNACCEPTABLE CONDUCT
Authority for Discharge: SECNAVINST 1920.6C

 Applicant’s Request:      Characterization change to:      
         Narrative Reason change to:       END OF ENLISTMENT TERM; DENIED RE-ENLISTMENT

Summary of Service

 Prior Service:
 Inactive:         US N R (DEP)        19940721 - 1995062 5     Active:                   1995062 6 - 19990101
                                             19990102 - 20031001
                                             20031002 - 20080131

Period of Service Under Review:
 Date of Appointment: 20080201     Age: 30
Years Contracted: NFIR
Date of Discharge: 20120531                Highest Rank/Rate: LTJG
Length of Service: Year(s) Month(s) 00 Day(s)
 Education Level:                  AFQT: 52
Officer’s Fitness reports: Available

Awards and Decorations ( per DD 214):      Rifle Pistol (2) (2) (2) (4) (2) (2) KCM FLoC

Periods of UA /C ONF :

NJP :

- 20101216 :      Article (Failu re to obey order or regulation)
         Article 133 ( Conduct unbecoming an officer and gentleman)
         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:

          “ 1995 06 26 ”
         “ 16 11 06 ”
         “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 950626 UNTIL 080201 ”

The NDRB will recommend to the Commander, Navy Personnel Command, PERS-312A, 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 :        

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 narrative reason for discharge is hindering his employment opportunities .
2.       The Applicant contends he should be allowed to finish his Naval career and would have been retained on active duty had it not been for the timing of the allegations against him as evidenced by the recommendations of senior officers including his commanding officer .
3.       The Applicant contends his narrative reason for separation was improperly designated due to an administrative error .
4.       The Applicant contends his narrative reason for separation was improper because he was innocent of the allegations against him and the CO that imposed his NJP was relieved of command early .
Decision

Date : 20 1 4 1009             Location: Washington D.C .        R epresentation :

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

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 133 ( Conduct unbecoming an officer and gentleman ) . Based on the offense(s) committed by the Applicant, Navy Personnel Command directed the initiation of administrative proceedings requiring him to show cause for retention in the naval service before a board of inquiry. The NDRB did not have the Applicant’s show cause separations package to determine whether or not the Applicant acknowledged his rights, waived his right to a board of inquiry, waived right to consult with a qualified couns el and submitted a written statement. However, the Applicant submitted documentary evidence that indicated he was communicating with counsel via email while underway , submitted a rights acknowledgement statement, and requested retention.

: (Nondecisional) The Applicant contends his narrative reason for discharge is hindering his employment opportunities . The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge

: (Nondecisional) The Applicant contends he should be allowed to finish his Naval career and would have been retained on active duty had it not been for the timing of the allegations against him as evidenced by the recommendations of senior officers including his commanding officer . 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 official discharge determinations for the purpose of reinstatement into the Armed Forces . Only the BCNR can make such changes . Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment , reentry, or reinstatement opportunities. A request for a waiver can be submitted during the processing of a formal application for reenlistment , reentry, or reinstatement through a recruiter. Furthermore, t he commanding officer’s recommendation for retention and promotion is just that, a recommendation. The 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 sailor will receive anything that a local commanding officer recommends regardless of the economic, political, or disciplinary environment . This issue does not present a foundation upon which the NDRB can grant relief.

: (Decisional) ( ) . The Applicant contends his narrative reason for separation was improperly designated due to an administrative error . The evidence of record shows the Applicant was administratively notified of the initiation of administrative processing relating to his nonjudicial punishment of 16 December 2010. The evidence of the record shows that his commanding officer submitted paperwork documenting officer performance and discipline in the form of an officer nonjudicial punishment on 20 August 2011. Commander, Naval Personnel Command (COMNAVPERSCOM) responded with a letter initiating separations on 27 December 2011 and the Applicant’s service record documents his acknowledgement of separation’s proceedings on 24 January 2012. The Applicant’s service record does not contain the Applicant’s Rebuttal to Notification of Reversion to Enlisted Status letter dated 23 January 2012 that the Applicant provided as documentary evidence to this board. However, in light of the documentary evidence reviewed by this board, no evidence exists to show that the listed narrative reason for separation was due to a simple administrative error. The NDRB found this issue to be without merit. Relief denied.

4 : (Decisional) ( ) . The Applicant contends his narrative reason for separation was improper because he was innocent of the allegations against him and the CO that imposed his NJP was relieved of command early . The evidence of record shows that the Applicant’s commanding officer was relieved of command ahead of the normal relief sched ule on 4 November 2011 due to administrative shortcomings. Regardless, t he record of evidence clearly shows the Applicant waived his rights to trial by court-martial by accepting nonjudicial punishment. The record of evidence shows the Applicant elected to appeal his nonjudicial punishment and the appeal was ultimately denied. The Applicant was subsequently notified of COMNAVPERSCOM’s intent to separate him on 27 December 2011 to which he submitted his acknowledgement of separations proceedings on 24 January 2012 . After reviewing the material provided in this case the Assistant Secretary of the Navy, Manpower and Reserve Affairs, determined the Applicant should be separate d for unacceptable conduct. The NDRB found no evidence that clearly illustrated the Applicant’s innocence and that the decision for his narrative reason for separation was improper at the time of issuance. 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 UNACCEPTABLE CONDUCT .

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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