ex-LTJG, USN
ND07-00620

Current Discharge and Applicant’s Request

Application Received:  20070404 	  Characterization Received:  
Narrative Reason:  MISCONDUCT (OTHER) 			    Authority:  MILPERSMAN SECNAVINST 1920.6B

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1. Isolated incident.

Decision

By a vote of  the Characterization shall  .	
By a vote of  the Narrative Reason shall  MISCONDUCT (OTHER).

Date:  20071129  		Location:  Washington D.C. 	Representation:  NONE

Discussion

Issue 1 ().The Applicant states his discharge was based on one isolated incident in “40 months,” and that he served honorably during his 4 years of instruction at the Naval Academy.  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.  The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for 2 specifications of violating Article 92 and a specification of violating Article 133 of the Uniform Code of Military Justice (UCMJ), thus substantiating the misconduct for which he was separated.  As the Applicant himself acknowledged while in service, Naval standards of conduct are high, especially for commissioned officers in whom is reposed special trust and confidence.  While all officer misconduct is serious, the nature of the Applicant’s misconduct called into his question his integrity and, as a result, his moral standing to lead subordinates.  The Applicant voluntarily submitted his qualified resignation request, and received the characterization of service he was willing to accept.  The Board found no basis in the record to suggest that the Applicant’s discharge was improper or inequitable.

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:
Active:   	(USNA)	19970701 - 20010524  
Period of Service Under Review:
Date of Commission: 20010525	Years Contracted:  INDEF; Extension:    	Date of Discharge:  20060428
Length of Service:  4  Yrs  11  Mths  04  Dys	Lost Time:  Days UA:    Days Confined:  
Education Level:  16	Age at Commission:  22	AFQT:  NOT FOUND IN RECORD  Highest Rank/Rate:  LTJG
Evaluation marks (# of occasions):	Performance:  3.5(4)	Behavior:  3.5(4)	 OTA:        
Awards and Decorations (per DD 214):  MERITORIOUS UNIT COMMENDATION, NATIONAL DEFENSE SERVICE MEDAL, EXPERT PISTOL SHOT MEDAL, SSBN DETERRENT PATROL PIN (4), NAVE “E” RIBBON (2), EXPERT RIFLEMAN MEDAL, SUBMARINE INSIGNIA OFFICER, GLOBAL WAR ON TERRORISM SERVICE MEDAL

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

20010525:	Applicant commissioned as an Ensign.

20030525:	Applicant promoted to Lieutenant Junior Grade.

20050519:	NJP -- Viol UCMJ Art. 92 – Failure to obey order or regulation: (Spec 1) Wrongfully entered classified information into personal calculator abt 20050404, (Spec 2) Failed to obey order to disable programmable function of calculator and used programmable feature of calculator to store and retrieve notes for use during exam, abt 20050404; and Art 133 – Conduct Unbecoming: Wrongfully and dishonorably employed unauthorized aid during Prospective Nuclear Engineer Officer Certification exam by using written notes previously stored within memory of electronic calculator.
	Awarded – Written Reprimand.

20050519:	Applicant issued Punitive Letter of Reprimand.

20050809:	 USS PENNSYLVANIA (SSBN 735) (BLUE) forwarded Report of  to Commander, Naval Personnel Command, requested that the Applicant be detached for cause by reason of misconduct, and recommended that Applicant be required to show cause for retention.  

20050822:	Applicant submitted statement in response to Report of .

20051115:	Commander, Naval Personnel Command, notified Applicant of initiation of administrative separation processing.
	[Extracted from COMNAVPERSCOM memo to SECNAV undated.] 

20060203:	Applicant submitted qualified resignation request.
	[Extracted from COMNAVPERSCOM memo to SECNAV undated.] 

20060206:	Applicant acknowledged rights pertaining to administrative separation processing.
	[Extracted from COMNAVPERSCOM memo to SECNAV undated.] 

20060308:	Chief of Naval Operations recommended to the Secretary of the Navy that Applicant’s name be removed from the Active Lieutenant All Fully Qualified Officers List.

undated:	Commander, Naval Personnel Command, recommended to the Secretary of the Navy that Applicant's resignation request be approved, with separation code of BKM (misconduct) and characterization of service as general (under honorable conditions).

20060315:	Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved Applicant’s removal from the Active Lieutenant All Fully Qualified Officers List and approved Applicant’s resignation request with separation code of BKM (misconduct) and characterization of service as general (under honorable conditions).
.
20060320:	Commander, Naval Personnel Command, informed Applicant that his name was removed from the Active Lieutenant All Fully Qualified Officers List.

20060428:	Applicant discharged this date.

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