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

FOR OFFICIAL USE ONLY

 ex-ENS, USNR
Docket No. ND05-00288

Applicant’s Request

The application for discharge review was received on 20041130.  The Applicant requests the Narrative Reason for Separation be changed to “Resigned/regular discharge.”  The Applicant requests a documentary record discharge review.  The Applicant designated Disabled American Veterans, Sarasota, FL, as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050908.  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 reason for discharge shall not change.  The discharge shall remain General (Under Honorable Conditions) by reason of misconduct due to commission of a serious offense.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application and attached document/letter: 

“My discharge was inequitable because it was based on one isolated incident in 8 years of active duty military and NROTC service.  My discharge was not adequate since I had no representation to defend myself, nor did I have a chain of command to advise or help me.”

Applicant’s Personal Letter:

“On or about 15JUN03, I was notified by email that I was being separated from naval service.  This came as a shock to me since I had been guaranteed by my chain of command that I was to remain in naval service.  After my NJP proceedings, my CO (Commander D_ S_) promised me a new job in the designator of my choice and that I would depart Vance AFB no later than May 2003.  Unknowing to me, CDR S_ PCS’s to a new command leaving my situation for no one to handle.  Prior to his sudden departure, we had met twice and both times he assured me that he was in contact with BUPERS and was taking care of my transfer order to a new command.  He informed me that it was unnecessary for me to see him anymore, he knew where I worked, and told me he would contact me once my new orders come in.  A few months after that conversation, I was informed by the mental health chief that CDR S_ had left the command.

After his departure, I fell into more of a helpless situation.  No one on the Air Force Base was knowledgeable about naval issues, so I was not able to gain any type of assistance.  The JAG office that was designated to advise and counsel me was 7 hours away in Ft. Worth, Texas and proved to be worthless.  After speaking with legal counsel once, after countless attempts to reach my appointed lawyer, the JAG assured me that I would remain in pilot training and receive a “small slap on the wrist” and everything would be fine.  He also informed me that even if I was to be dismissed, I would be required to fulfill my obligation to the navy.  He informed me that he was speaking with the JAG at the Naval Air Training Command and everything would be worked out.  I made countless phone calls and emails all getting no response.  All the worthless advice and promises by CDR S_ and the JAG were never remotely fulfilled.

During my time in stagnation (10 months) I had to perform useless and worthless duties never knowing my future.  That was until one day, I was notified through email by a 2nd Class Petty Office that I was being separated from service.  My chain of command had no nerve to call me in and inform me directly.  The separation process was another nightmare.  I submitted countless documents upon request and I endured harassing phone calls, only to have all my paper work be lost or deemed incorrect.  First I was told I was being separated in August 2003.  This date turned out to be wrong and I was dragged through the dirt for another five months.  I could never prepare or ready a plan of action to return to civilian life due to BUPERS inconsistency and no help from my chain of command.  Applications and job interviews were impossible to schedule due to my uncertain status.  It wasn’t until December 2003 when I was on leave that I was informed I had 2 weeks to separate from the service.  Two weeks is not nearly enough time to get proper dental and medical examinations, nor is it enough time to file proper VA claims.  Moreover, during my time in limbo, I began to suffer from depression.  I went through a period of several months were I did not sleep, hardly ate, and always felt anxious and nervous.  Still with no direct chain of command to help or provide me any guidance or legal advice, I lost all hope and stopped working and caring

I have thoroughly exhausted my chain of command with no resolve.  I do not feel I deserve to be characterized with a “General” discharge and with a code that lists me as a felon.  My CO and his boss, Chief of Naval Air Training, both promised me I would remain in the service.  I believe I should have had the right to remain in service and serve my country.  In my command at Vance AFB, there were other student pilots who had been convicted with DUI’s, indecent exposure, and drunk and disorderly acts.  All of them have remained in pilot training and are now enjoying aviation careers.

For the boards notes, I served three years enlisted time where I received one good conduct medal and an honorable discharge.  I am a law abiding citizen and have high morals and good judgment.  I understand I made a mistake, however, I believe I have not been fairly treated and given proper opportunity to defend myself.  I have done everything in my power to seek fairness and opportunity for myself.  I have given up on the system and now hope that you will honor my request.

I respectfully request that my discharge be upgraded to Honorable with the adverse code removed or remain a General with the adverse code removed.

Very Respectfully,
[signed]
M_ R. H_ (Applicant)”

Additional issues submitted by Applicant’s counsel/representative (Disabled American Veterans):

“Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and of all evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current General Under Honorable Condition discharge to that of Honorable, with a change of the Narrative Reason for Separation to: Resigned / regular discharge.

The FSM served on active service from May 4, 2002 to December 31, 2003 at which time he was discharged due to Misconduct - Commission of a Serious Military or Civilian Offense. 

The FSM contends the current discharge is improper because it was based on one isolated incident in eight years of active duty military and NROTC service. He had no representation to defend himself, nor did he have a Chain of Command to advise or guide him through the process as indicated by the supporting documents. 

This creates a need for a review of the application of the standard, for the Board to determine that the applicant’s discharge was improper. The Board will determine which reason for discharge should have been assigned based upon the facts and circumstances before the Board, including the service regulations governing the reasons for discharge at that time, to determine whether relief is warranted. See, SECNAVIST 5420.174 D, Sect. 407, part 3.

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174D.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the applicant.”

Documentation

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

Applicant’s DD Form 214
CNATRA’s endorsement letter dtd April 7, 2003
CO, 8th Flying Training Squadron’s letter dtd March 24, 2003
Captain M_ Miller, USAF, undtd letter to SECNAV
Applicant’s undtd letter concerning “Letter of Educational Pursuits”
Letter of Employment from R_ M_, dtd November 9, 2004
Applicant’s undtd letter to the Board providing service information (2 pgs)
PSA Detachment, Tinker Air Force Base, OK, Standard Statement of Service, dtd December 3, 2003
Copy of Applicant’s Birth Certificate
Applicant’s DD Form 214 (95JUN20 – 98AUG26)
Service Record Page (NAVPERS 1070/613) reflecting discharge 03MAY02
Applicant’s DD Form 214 (02MAY04-03DEC31)
Applicant’s request to participate in the BOOST Program dtd September 2, 1996 (2 pgs)

PART II - SUMMARY OF SERVICE

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

Inactive: USNR (DEP)       19940624 – 19950619	COG
Active:   USN 		       19950620 – 19980826	HON (To accept officer training)
Inactive:  USNR (ROTC)   19980827 – 20020503	HON (To accept commission)

Period of Service Under Review:

Date of Commission:  20020504		Date of Discharge:  20031231

Length of Service (years, months, days):

	Active:    01  07  27  
	Inactive:  None

Time Lost During This Period (days):  

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  24

Years Contracted:  8

Education Level:  16	

Highest Rank:  ENS

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

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  NAVY GOOD CONDUCT MEDAL, NATIONAL DEFENSE SERVICE MEDAL (2), ARMED FORCES SERVICE MEDAL

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

(GENERAL) UNDER HONORABLE CONDITIONS/MISCONDUCT, authority:  SECNAVINST 1920.6B

Chronological Listing of Significant Service Events: 

030313:	Applicant’s statement accepting NJP.

030319:	NJP for violation of UCMJ, Article 92:  Knowingly violated a lawful general regulation by having an unduly familiar relationship with an enlisted member.
	Violation of UCMJ, Article 90:  Failure to obey an order by continuing the above relationship after receiving and signing a no contact order from his Commanding Officer.
	Award:  Letter of reprimand.  

030320:	Applicant elected not to appeal the NJP.

030320:	Letter of Reprimand issued to the Applicant.

030324:	CO, 8th Flying Training Squadron, report of officer nonjudicial punishment, via the Chief of Naval Air Training (CNATRA).  CO recommended Applicant’s retention to fulfill his service obligation.

030407:	CNATRA recommended to CNP that Applicant be retained in the Naval service.

031010:	Applicant’s request for resignation, not contained in service record, cited as an enclosure to CNP recommendation dated 031010.

031010:	CNP recommended the Secretary of the Navy accept the Applicant’s resignation request and separate him with a General (Under Honorable Conditions) discharge due to acts of misconduct not otherwise listed.  CNP further recommended approval of the recoupment of $35,137.41 in education expenses incurred through the NROTC program. 

031106:	Assistant Secretary of the Navy (ASN (M&RA)) approved Applicant's discharge, as recommended.

Service Record contains a partial Administrative Discharge package. 

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20031231 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of general (under honorable conditions).  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).  The Board presumed regularity in the conduct of governmental affairs (E).

Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  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 violations of Articles 90 and 92 of the UCMJ.  Violations of Articles 90 and 92 of the UCMJ are considered serious offenses.  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.  The summary of service clearly documents that misconduct due to the commission of a serious offense as the reason the Applicant was discharged.  No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged.  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 consider his discharge proper and equitable.  Relief denied.

The Applicant states that his discharge “was not adequate since I had no representation to defend myself, nor did I have a chain of command to advise or help me” and that his “CO and his boss… promised” the Applicant that he would remain in the Navy.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the Applicant produced any evidence to support the contention that he did not have proper legal counsel or that he was treated improperly or unfairly by his command.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  However, even if the Applicant could show that he was not provided proper legal counsel or that he was treated unfairly by his command, it would neither amount to a justification nor to a defense for the Applicant’s own misconduct.  Relief denied.  

Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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 Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge 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.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided sufficient post-service documentation for the Board to consider.  Relief denied.

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.  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.  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 90, willfully disobey a superior commissioned officer and Article 92, failure to obey and order/regulation.
 
C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

E.   Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, 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 “http://Boards.law.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:

		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