ex-LT, USN
ND07-00108

Current Discharge and Applicant’s Request

Application Received:  20061101	Characterization Received:  
Narrative Reason:  MISCONDUCT Authority:  SECNAVINST 1920.6B

Applicant’s Request:	Characterization change to:    
			Narrative Reason change to: 
Applicant’s Issues:	1.  Characterization not warranted by record
			2.  Other cases handled differently
			3.  Staff Judge Advocate biased
			4.  Sent TAD to ship to prevent exercise of right to court-martial		

Decision

By a vote of  the Characterization shall  .	
By a vote of  the Narrative Reason shall  MISCONDUCT.

Date:  20070830  					Location:  Washington D.C. 

Discussion

Issue 1 ().  When the service of a member of the U.S. Navy meets acceptable standards of behavior and performance, 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 a nonjudicial punishment proceedings for violations of Articles 92 and 134 of the UCMJ.  As an officer, the Applicant had a duty to uphold the highest standards of conduct.  By definition, the Applicant’s misconduct, adultery and fraternization, constituted behavior that was directly harmful to good order and discipline.  The Applicant’s conduct falls short of that required for an upgrade of her characterization of service

Issue 2 ().  The Applicant contends that her discharge was inequitable because other servicemembers were punished less harshly for similar misconduct.  The Board reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis.  If such a review reveals an impropriety or inequity, relief is in order.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service.  Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy.  A preponderance of the evidence reviewed supports the conclusion that the Applicant committed the offense for which nonjudicial punishment was imposed, that separation from the Naval service was appropriate, and that a general (under honorable conditions) discharge was warranted.  The Board noted that the Applicant, rather than show cause for retention in the Navy, requested, via a qualified resignation, the characterization of service she requested.

Issue 3 ().  The Board found no evidence in the record to support the Applicant’s contention of bias on the part of the Naval Postgraduate School Staff Judge Advocate.  The Applicant’s own submission supports the conclusion that her claim was thoroughly investigated and determined to be unfounded.  The Board further noted that the Staff Judge Advocate had no decision-making authority regarding the Applicant’s case.  Relief is not warranted on this issue.

Issue 4 ().  The Board found no evidence in the record to indicate that the Applicant was transferred to the HARPERS FERRY for any improper purpose.  Further, the Board noted that the Applicant’s misconduct occurred aboard that vessel, that relevant witnesses were aboard that vessel and that the Commanding Officer of that vessel had a legitimate interest and duty to determine the nature and scope of misconduct by, among and between the ship’s officers and crew in order to take appropriate measures to establish and maintain good order and discipline.  Relief is not warranted on this issue.

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that 

Summary of Service

Prior Service:
Inactive: USNR (DEP)	19960712 - 19970127  		Active:   	19970128 - 20021123
Period of Service Under Review:
Date of Commission: 19980619		Type of Commission:  Regular (Indefinite) 	Date of Discharge:  20040330
Length of Service:  05  Yrs  09  Mths  12  Dys	Lost Time:  Days UA:    Days Confined:  
Education Level:   16 Degree: 	Age at Enlistment:  23    AFQT:  99    Highest Rank/Rate:  LT
Evaluation marks (# of occasions):	 Final Officer Fitness Reports were available to the Board for review.
 
Awards and Decorations (per DD 214):  NAVY AND MARINE CORPS COMMENDATION MEDAL, NAVY AND MARINE CORPS ACHIEVEMENT MEDAL, COAST GUARD UNIT COMMENDATION MEDAL (w/OPERATIONAL DISTINGUISHING DEVICE), NAVY “E” RIBBON, NATIONAL DEFENSE SERVICE MEDAL, ARMED FORCES EXPEDITIONARY MEDAL; SEA SERVICE DEPLOYMENT RIBBON (2), NAVY AND MARINE CORPS OVERSEAS SERVICE RIBBON, PISTOL SHARPSHOOTER RIBBON, SURFACE WARFARE OFFICER BREAST INSIGNIA

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

20020204:	CO's NJP -- Viol UCMJ Art. 92 – Failure to obey order or regulation; viol UCMJ Art. 134 (3 specs) Adultery  Awarded – Punitive Letter of Reprimand.

Discharge Process

Report of Misconduct:  20030205, CO, USS HARPERS FERRY, recommends Applicant not show cause.  	
Show Cause Recommendation:  20030328, Superintendent, NPS endorses, recommending Applicant show cause.	
Show Cause Decision: 20030806, CNPC notifies Applicant of requirement to show cause before Board of Inquiry
Applicant Election: 20031023, Applicant submits qualified resignation
CNPC Recommendation:  20040105	ACCEPT RESIGNATION, separation code for MISCONDUCT
					Characterization: GENERAL (UNDER HONORABLE CONDITIONS) 
Separation Authority action:  ASN(M&RA) 20040304, Reason for Discharge directed:  
				Characterization directed:	
Applicant Discharged:  20040330			

Types of Documents Submitted by Applicant and Considered By Board

Related to Military Service:	Service and/or Medical Record:  		Other Records:  

Related to Post-Service Period:  	
	Employment:  			Finances:  			Education: 		
	Health/Medical Records:  		Substance Abuse:			Criminal Records:  	
	Family/Personal Status: 		Community Service:  		References:  		
	
Additional Statements From Applicant:  	From Representative:    Other Documentation (Describe)       

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.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  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 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:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the 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 additional evidence related to this discharge.  Representation at a personal appearance hearing is recommended but not required.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  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 Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’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 Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board 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 subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, 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 “PTSD.”  Only the Board for Correction of Naval Records can grant this type of narrative reason change.  

Automatic Upgrades - 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 may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  

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 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.  

Board Membership:  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