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

 
ex-LTJG, USNR
Docket No. ND04-00457

Applicant’s Request

The application for discharge review was received on 20040128.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant designated civilian counsel as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040922.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain:  GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: SECNAVINST 1920.6B & BUPERS ORDER 3640 OF 2000DEC09.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Issues submitted by Applicant’s counsel/representative (CIVILIAN COUNSEL):

“ISSUE 1.  LTjg D_’s (Applicant's) difficulties in his social life with foreign national girlfriend were a direct result of a conflict in culture from his ex-girlfriend’s family customs and anti-American leanings.  LTjg D_ (Applicant) was separated from the Naval Service as a result of his personal social activities and the bias of his former girlfriends parent's xenophobia. The General discharge was unfair, unjust and without any nexis to his military service or performance of duties.

ISSUE 2.  LTjg D_ (Applicant) was denied basic due process in that he was never afforded a hearing of any type to rebut the allegations which ultimately led to his discharge. Although it was alleged that he committed a pattern of misconduct, no charges were ever sworn against him and the issues which resulted in his separation were never documented, proven, heard of or disposed of at any type of forum including a civilian trial, non-judicial punishment or court-martial. The allegations against him were apparently generated from multiple hearsay sources, which lacked reliability. He was never allowed to fully see or examine alleged “evidence” against him which was the claimed basis for a pattern of misconduct.

ISSUE 3.  The primary “action officer” at the Naval Personnel Command (Pers-83) responsible for generating documents used to separate LTjg D_ (Applicant's) was neither neutral nor detached in this matter. Captain D_ J_ F_ USN had served as LTjg D_ (Applicant's) previous supervisor during his prior tour in Naples, Italy. Instead of excusing himself from taking official action based on his personal animosity for LTjg D_ (Applicant), Captain F_ actually “led the charge” which resulted in LTjg D_’s discharge.

ISSUE 4.  An erroneous briefing document was prepared on November 15, 2000, by the Bureau of Naval Personnel, Pers-8, and submitted to the Office of the Secretary of the Navy.  At the time, neither LTjg D_ (Applicant) nor his counsel were ever allowed to see the document.  Had the SECNAV briefing letter not been withheld from LTjg D_, .he could have responded to the clear and obvious errors in the briefing document which resulted in his discharge.

ISSUE 5.  LTjg D_ (Applicant) is being financially punished in that he is being forced to pay in excess of $26,000 to recoup the partial cost of his Naval Academy education.  To continue to stigmatize him for life with a less than fully Honorable discharge, as well as this huge debt, only adds insult to his financial injury.

ISSUE 6.  In the alternative, assuming arguendo, that LTjg D_’s  (Applicant's) actions were cause for involuntary discharge, his on the job professional performance at all assigned military duties during 7 1/2 years of combined Naval Academy and active duty Navy duty service, combined with his meritorious post-service contributions to society, clearly merit elevation to a fully Honorable discharge.”

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Copy of DD Form 214
Legal Brief (9 pages)
CHNAVPERS ltr to Secretary of the Navy dtd Nov 15, 2000 (4 pages)
Applicant’s Petition outlining Errors in CHNAVPERS’s ltr of Nov 15, 2000 (2 pages)
Applicant’s Résumé (3 pages)
NavMedCen San Diego, Mental Health Services, Eval dtd Nov 29, 1999 (5 pages)
Outstanding Performance Citation (Oct 1999 – Jan 2000), Commander in Chief, U.S. Pacific Fleet
NATO Medal Citation (July 1998 – October 1998)
Training Certificate, Security Training/Educational Seminar, 1998
Department of Labor, Licensing and Regulation Certificate, State of Maryland, Engineer – In – Training, dtd  Feb 4,1998
USNA letter of Permanent Designation as a Craftmaster Officer-In-Charge dtd Jul 10, 1997
USNA Letter of Appreciation dtd Oct 10, 1997
Letter of Recommendation, for Cryptology community, from S_ L. G_, LT, USN, dtd Nov 3, 1997
Character Reference letter from LT J_ G. D_, U.S. Naval Academy, dtd Nov 7, 1997
USNA Letter of Designation as Assistant-Officer-In-Charge USNA Yard Patrol Craft (YP-676 Class) (date of letter unreadable)

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Inactive:  None
	Active:    None

Period of Service Under Review:

Date of Commission:  970523	Date of Discharge:  010131

Length of Service (years, months, days):

	Active:    03  08  09
	Inactive:  None

Age at Entry:  22			Years Contracted:  8

Education Level:  16	

Highest Rank:  LTJG

Final Officer Performance Evaluation Averages:  All officer performance reports were available to the Board for review.

Military Decorations:  None

Unit/Campaign/Service Awards:  NUC, MUC, NDSM, AFSM, N&MCOSSR, NATO Medal (w/Bronze Star), Navy Rifle Sharpshooter Ribbon, Navy Pistol Sharpshooter Ribbon, Craftmaster Qual Badge

Days of Unauthorized Absence:  None

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  SECNAVINST 1910.6B.

Chronological Listing of Significant Service Events:

971021:	NJP for violation of UCMJ, Article 107 (2 Specs): 
Specification 1:  Did, at or near Naval Nuclear Power Training Command, on diverse occasions from 15 Sep 97 to 7 Oct 97, with intent to deceive, sign an official record, to wit:  Security Container Check Sheet, which record was false in that Ens. D_ (Applicant) did not open his locker at the time he so indicated, and was then known by the said Ens D_ (Applicant) to be so false.  
Specification 2:  Did, at or near Naval Nuclear Power Training Command, on diverse occasions from 15 Sep 97 to 7 Oct 97, with intent to deceive, make to LTJG C_ official statements, to wit:  false study log time entries, which statements were false in that Ens D_ (Applicant) did not study during the entire time periods he entered in the log, and were then known by the said Ensign D_ to be false.
	Award: Letter of Reprimand.  Did not appeal and elected not to submit a rebuttal to the Letter of Reprimand.

971021:	Punitive Letter of Reprimand issued to Applicant.

971029:	CO, Naval Nuclear Power Training Command, reports to CHNAVPERS and CNET Applicant’s NJP and advised that Applicant has been administratively removed form the Naval Nuclear Propulsion Program and applying for re-designation.

991006:	Applicant’s statement concerning adverse fitness report for period 01 Jun 99 to 31 Aug 99.

991129:	NAVMEDCEN San Diego (Mental Health):  24 year old, single, Caucasian, male LTJG with approx 6 years 3 months continuous active duty currently stationed at the TPU, NavSta, San Diego, was referred for eval by LCDR L_ at the Bureau of Navy Personnel to determine if this young man is suffering from a personality disorder.  The limits of confidentiality were reviewed prior to the eval and the patient indicated that he understood.
	Relevant History:  …The relationship was his first serious encounter per his report.  He admitted that he made mistakes in handling the relationship break up and wrote many letters and made many telephone calls to her in an effort to reconcile with her.  He admitted that he was confused and angry about the relationship pending but vehemently denied ever having thoughts of harm toward her.  In Mar 99, he was evaluated in the Emergency Department at the Naval Hospital Naples for suicidal ideation.  Medical report indicated that he told a co-worker that he had had feelings of wanting to hurt himself.  Note indicated that the physician consulted with psychiatrist and that the young man was not judged to be at risk and was discharged. …During months between Mar 99 and Jul 99, LTJG D_ (Applicant) continued to attempt to reconcile the relationship.  However, it also come to light that he was searching the Internet for information on explosives, listening devices, surveillance equipment and video cameras.  Co-workers apparently became concerned that he might use these things against his ex-girlfriend and informed the Dept Hd.  His Dept Hd initiated a Military Protective Order and initiated a NCIS investigation.  A review of the NCIS investigation revealed that LTJG D_ (Applicant) was investigated due to fears that he was stalking an Italian native with whom he had been in a romantic relationship.  In addition, the command had become alarmed because enlisted staff indicated that LTJG D_ (Applicant) had sought information regarding bomb making and special warfare and listening devices over the Internet.  After a thorough investigation, there was no evidence that any laws had been broken.  The investigation did, however, put a strain on the family of the woman involved.  Reports noted that she and her family never felt threatened by the service member, just that they wished the relationship to be over.
	Diagnostic Impression:
	AXIS I:	No diagnosis
	AXIS II:	No diagnostic criteria were met
	AXIS III:	No known illness
	AXIS IV:	Psychological Stressors:  job related stress, i.e., current 
Evaluation
AXIS V:	Current GAF:  85.  Highest GAF in past year:  85
Recommendation:  1.  LTJG D_ (Applicant) is psychologically fit and suitable for full duty in the Navy.  2.  No psychological follow up is necessary at this time.  
[EVALUATION PROVIDED BY THE APPLICANT.]

001115:	CHNAVPERS recommended to the Secretary of the Navy that Applicant be discharged with a General (Under Honorable Conditions) by reason of misconduct – pattern of misconduct consisting solely of minor disciplinary infractions.  [PROVIDED BY THE APPLICANT]

001219	Assistant Secretary approved Applicant's discharge, as recommended by the CHNAVPERS.  [PROVIDED BY THE APPLICANT]

[SERVICE RECORD DOES NOT CONTAIN COMPLETE DISCHARGE PACKAGE]

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010131 with a general (under honorable conditions) for misconduct due to a pattern of misconduct (A).  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this, the Board found that the discharge was proper and equitable (B and C).  The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (D).    

Issues 1-4, 6:  The Applicant contends that he served the United States well and he is entitled to an upgrade.  When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  A General discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by nonjudicial punishment proceedings for two violations of Article 107 of the UCMJ.  These security violations resulted in his removal from the Naval Nuclear Propulsion Program and subsequent re-designation.  There is also credible evidence that the Applicant violated a military protective order.  The Applicant’s statements, that he was denied due process and was subject to a biased review, have not been substantiated by the evidence nor do they refute the presumption of regularity in this case.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.  Relief denied.

There is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in civilian life, subsequent to leaving the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  Evidence of continuing educational pursuits, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct.   At this time, the Applicant has not provided sufficient verifiable documentation of good character and conduct to mitigate his misconduct while on active duty.  

Issue 5:  The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities or relieving recoupment indebtedness as requested in the issue.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable.   

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Secretary of the Navy Instruction 1920.6B (ADMINISTRATIVE SEPARATION OF OFFICERS), effective 13 December 1999 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 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE. 

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

PART IV - INFORMATION FOR THE APPLICANT

If you believe that 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 Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive.  You should read Enclosure (5) of the Directive 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 Directive 1332.28 and other Decisional Documents by going online at “afls14.jag.af.mil”.  

The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023