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

FOR OFFICIAL USE ONLY

ex-LT., USNR
Docket No. ND06-00488

Applicant’s Request

The application for discharge review was received on 20060208.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable and the Narrative Reason for Separation be changed to “Other (FBC).”  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20061206.  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 and reason for discharge shall not change.  The discharge shall remain General (Under Honorable Conditions) by reason of misconduct.

PART I - ISSUES AND DOCUMENTATION

Decisional Issues:

Equity: Command misconduct.

Equity: Inadequate counsel.

Documents submitted by the Applicant:

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

Applicant’s DD Form 214
Letter from Applicant to NCPB with enclosures (A) thru (N) dtd January 20, 2006

PART II - SUMMARY OF SERVICE

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

	ARNG		19900723 - 19920125	
	ARNG		19950217 - 19971201	
	USNR		19971202 - 20030831	HON

Period of Service Under Review:

Date of Affiliation:  20031001		Date of Discharge:  20050802

Length of Service (years, months, days):

	Inactive:  01  10  01

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  30				Years Contracted:  8		

Education Level:  Bachelor			Highest Grade:  LT

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.0 (1) 	Behavior:  1.0 (1) 	OTA:  2.17

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  NC, NAM, (2nd), Combat Action Ribbon, Army Achievement Medal, ARCOM, Air Force Achievement Medal, Air Force Good Conduct Medal, NUC, CG MUC, Navy MUC, Armed Forces Expeditionary, National Defense Service Medal (2nd), AF Training Ribbon, Army Service Ribbon, Air Force Longevity Service Ribbon, Expert Pistol, Army NCO Ribbon, Humanitarian Service Medal, Battle “E”, SSR, NATO Medal, MOVSM (2), SWMDO Pin, NPJ Badge, Air Assault Badge, Expert Infantry Badge, Sharpshooter (Rifle).

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  MILPERSMAN, Article 1920-190.

Chronological Listing of Significant Service Events: 

031001:	Applicant joined 4th Medical Battalion, 4th Force Service Support Group, Marine Forces Reserve, San Diego, CA.

040506:	Applicant submitted Transfer to IRR request to CO, Navy and Marine Corps Reserve Center.  Applicant had returned to France in order to live near his family and cannot easily travel to a drill site.  [Extracted from documents submitted by Applicant.]

040605:	CO, Naval and Marine Corps Reserve Center, denied Applicant’s request to transfer to Inactive Ready Reserve (IRR) pending resolution of several administrative issues concerning the Applicant.  Applicant must continue to drill or request authorized absence.  Action will be taken upon notification from unit that a final decision has been made in the issues in question.  [Extracted from documents submitted by Applicant.]

040607:	U.S. Marine Corps Criminal Investigation Division initiated investigation into Applicant’s alleged travel fraud.  [Extracted from documents submitted by Applicant.]

040618:	Applicant requested authorized absence for a period of 12 months to CO, 4th Medical Battalion.  [Extracted from documents submitted by Applicant.]

041115:	U.S. Marine Corps Criminal Investigation Division closed investigation.  [Extracted from documents submitted by Applicant.]

050222:	Commanding Officer, 4th Medical Battalion, requested Show Cause for Retention.  The CO requested that the Applicant be administratively separated under other than honorable condition by reason of unsatisfactory drill participation in the U.S. Naval Reserve.  [Extracted from documents submitted by Applicant.]

050511:	CO, NAVMARCORRESCEN, transferred Applicant to IRR (NRPC) due to inability to maintain satisfactory drill attendance.  [Extracted from documents submitted by Applicant.]

050517:	Commander, Navy Personnel Command, notified Applicant of administrative show cause proceedings for the following:
a.  Misconduct – commission of a military or civilian offense, which, if prosecuted under the UCMJ, could be punished by confinement of six months or more; specifically,
			(1) Violation of the UCMJ, Article 86, unauthorized absence;
			(2) Violation of the UCMJ, Article 92, failure to obey a lawful order or regulation;
			(3) Violation of the UCMJ, Article 107, false official statements;
			(4) Violation of the UCMJ, Article 132, fraud; and
			(5) Violation of UCMJ, Article 133, conduct unbecoming an officer.
		b.  Substandard performance of duty; specifically,
			(1) Failure to demonstrate acceptable qualities of leadership required of an officer in your grade and
			(2) Failure to conform to prescribed standards of military deportment.
The Applicant was notified that the least favorable characterization of service may be recommended in his case is Other Than Honorable.  The Applicant advised that he may tender a qualified resignation request in lieu of administrative separation.  [Extracted from documents submitted by Applicant.]

050624:	Applicant submitted Resignation of Commission to Navy Personnel Command, PERS 4834.  Applicant understood that if resignation is accepted, he shall subsequently receive a certificate of general discharge from the Naval Service.

050704:	Applicant submitted Acknowledgement of Rights to Commander, Navy Personnel Command (PERS 4834D).  Applicant desired to tender resignation (dated 050624) and waive right to a Board of Inquiry.  [Extracted from documents submitted by Applicant.]

UNDATED:	Commander, Navy Personnel Command, recommended approval of the Applicant’s qualified resignation request and separated him with a general discharge (separation code BKM, misconduct).

050802:	Assistant Secretary of the Navy (M&RA) approved the request.

050818:	Commander, Navy Personnel Command, informed the Applicant that the Secretary of the Navy, acting for the President, discharged him from the United States Navy Reserve effective 050802 with a General Discharge.  

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20050802 by reason of misconduct (A and B) with a service characterization of general (under honorable conditions).  After a thorough review of the 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).

Equity – Command misconduct:  The Applicant contends that his discharge was inequitable because his “former unit sought retribution for [his] open participation in an IG investigation which looked poorly upon the unit’s command element.”  

While the Applicant may feel that the underlying cause for his separation was command retribution, the record clearly reflects his misconduct, which demonstrated he was unfit for further service.  The evidence of record shows that the Applicant was notified on 20050517 of administrative show cause proceedings for misconduct due to commission of military offenses; specifically, violation of UCMJ Article 86 Unauthorized absence, Article 92 Failure to obey a lawful order or regulation, Article 107 False official statements, Article 132 Fraud, and Article 133 conduct unbecoming an officer.  Violation of Articles 92, 107, and 132 are serious offenses for which a punitive discharge is authorized under Appendix 12 of the Manual for Courts-Martial and typically warrants a characterization of service as under other than honorable conditions.  On 20050704, the Applicant acknowledged the notification to show cause for retention, waived his right to a Board of Inquiry, and tendered his qualified resignation.  This Board found no evidence in the record, nor has the Applicant produced any evidence, which suggests a causal relationship between the IG investigation and command decision to administratively separate the Applicant.  The government enjoys the presumption of regularity (E).  In the absence of contradictory evidence, the Board concluded that the government’s agents acted in good faith, proceeded within the bounds of the law, and conformed their behavior to appropriate standards during the Applicant’s Naval service and subsequent administrative processing.  The Board advises the Applicant that he bears the burden of establishing his issues through the presentation of substantial and credible evidence.    The Applicant’s statements alone do not provide sufficient basis to grant relief.  Relief denied.

Equity – Inadequate counsel:  The Applicant contends that his discharge was inequitable because “counsel never advised me that a misconduct separation code was a possible outcome.”

On 20050517, Commander, Navy Personnel Command, notified the Applicant that administrative action requiring him to show cause had been initiated in accordance with SECNAVINST 1920.6B.  In this notification, the Applicant was informed that the reasons for administrative action were misconduct and substandard performance of duty.  The Applicant was further notified that he may exercise his right to tender a qualified resignation request in lieu of administrative separation.  Regulations governing resignation stipulate only that the favorable characterization of service for a qualified resignation is General (Under Honorable Conditions).  In the Applicant’s case, this does not affect the reason for discharge.

Under its responsibility to examine the propriety and equity of the Applicant's discharge, this Board will change the reason for discharge if such a change is warranted.  A review of the Applicant’s records show that the reason for initiating administrative processing procedures was the Applicant’s misconduct – commission of a military or civilian offense, which, if prosecuted under the UCMJ, could be punished by confinement of six months or more and substandard performance of duty.  The Board concluded that while the qualified resignation addressed the character of service the Applicant would receive, the narrative reason for separation remained as notified.  Since no other Narrative Reason for Separation could more clearly describe why the Applicant was discharged, changing it would be inappropriate.  Relief on this basis is denied.

The Applicant is advised that the Board has no jurisdiction over reenlistment, reentry, or reinstatement into any of the Armed Forces.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Reenlistment policy of the Naval service is promulgated by the Commander, Navy Recruiting Command, 5722 Integrity Drive, Bldg 784, Millington, TN 38054.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  Since these issues do not serve to provide a foundation upon which the Board can grant relief, relief on this basis is not warranted.

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 post-service accomplishments or any other evidence related to the discharge at that time.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A  Navy Military Personnel Manual, (NAVPERS 15560C), Article 1920-190, Types of Resignation by Officers and Article 1920-200 Resignation of an Officer.

B.  Secretary of the Navy Instruction 1920.6B, Administrative Separation of Officers.

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, Para 211, Regularity of Government Affairs.

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