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ex-LCDR, USNR

Current Discharge and Applicant’s Request

Application Received: 20080924
Characterization of Service Received:  
Narrative Reason for Discharge: (per DD 214) RESIGNATION IN LIEU OF COURT MARTIAL
Authority for Discharge:  SECNAVINST 1920.B

Applicant’s Request:  Characterization change to:  
		       Narrative Reason change to:  

Summary of Service

Prior Service:
Inactive: USMCR (DEP)	19720616 - 19720628  	Active enlisted:	19720629 – 19740828 USMC
				19740829 – 19750411 USMCR
				19750412 – 19781201 USAR
				19790915 – 19830909 USNR
				19830910 – 19850908 USNR
				19850909 – 19870429 USNR

Period of Service Under Review:

Date of Commission:  19870430	Age:  33
Years Contracted:  Indefinite
Date of Discharge:  20020702	Highest Rank:  LCDR
Length of Service:  15 Year(s)   02  Month(s)   3 Day(s)
Education Level:  	AFQT: 97	
Officer’s Fitness reports:  Available

Awards and Decorations (per DD 214):	NONE

Periods of UA/CONF:  

NJP:       SCM:       SPCM:       CC:       Retention Warning Counseling:  

Discharge Process

Charges Preferred:  20020122
Charges:
	Article 80 (Attempts), 2 specifications      
	Article 121 (Larceny), 1 specification
Article 133 (Conduct unbecoming an officer), 15 specifications
Article 134 (Wearing unauthorized insignia, decoration, badge, ribbon device), 5 specifications     

Date Applicant Submitted SILT request:		20020127
	Consulted with or Waived Counsel:		
	Acknowledged Understanding Elements:	
	Acknowledged Guilt to:			Articles 80, 121, 133, 134 
		BCD/DD authorized for offense(s)	
	Acknowledged Consequences of OTH:	
	Type of Characterization Requested:	

Commanding Officer Recommendation (date):	   (20020131)
Separation Authority (date):			ASN (M&RA) for the Secretary of the Navy (20020625)
	Reason for Discharge directed:		
	Characterization directed:			
Date Applicant Discharged:			20020702

NDRB Documentary Review Conducted (date):	20080327
NDRB Documentary Review Docket Number:	ND08-00361
NDRB Documentary Review Findings:		Proper as issued and that no change is warranted.
 
Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

	  “IN LIEU OF TRIAL BY COURT MARTIAL”

The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate.

Types of Documents Submitted/reviewed

Related to Military Service:	
                                         DD 214:  	 Service/Medical Record:  		  Other Records:  

Related to Post-Service Period:	
	Employment:			Finances:			Education/Training:	
	Health/Medical Records:		Substance Abuse:			Criminal Records:	
	Family/Personal Status:		Community Service:		References:		
              Additional Statements:
                             From Applicant:  	From Representation:         	From Congress member:    

                    Other Documentation:  

Pertinent Regulation/Law

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 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(a), Presumption Concerning Court-Martial Specifications.

C.  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.

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

Applicant’s Issues

1. Signed resignation under “extreme duress” and characterization of discharge is too harsh for the misconduct.
2. Discharge does not accurately reflect his overall character of service.
3. Post-service conduct and achievements warrant consideration.

Decision

Date:  20091014        Location:  Washington D.C.    Representation:  

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

Discussion

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted.  In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  During this period of service, the Applicant had no nonjudicial punishments (NJP) or courts-martial.  However, in a letter dated 27 January 2002, the Applicant submitted his resignation for the good of the naval service and to escape trial before a general court-martial.  He consulted with counsel and was fully advised of the implications of his request.  The Applicant understood that if discharged under other than honorable conditions, it might deprive him of virtually all veterans benefits, that he might expect to encounter substantial prejudice in civilian life in situations where the character of separation may have a bearing, and he would not be entitled to receive retirement benefits, including reserve retired pay.  The Applicant stated he understood the elements of the offenses with which he was charged and admitted he was guilty of the misconduct underlying the court-martial charges preferred against him.  The following were the preferred charges for violations of the Uniform Code of Military Justice (UCMJ): Article 80 (Attempts, 2 specifications: attempt to wrongfully possessing some amount of (1) morphine & (2) Demerol, both schedule II controlled substances); Article 121 (larceny, stealing military property: medical supplies valued at more than $100); Article 133 (conduct unbecoming an officer, 15 specifications: wrongfully and dishonorably stating or words to that effect: (1) “I am a medical doctor,” (2) “I am a forensic pathologist,” (3) “I was tasked to help in the recovery and identification of bodies at the World Trade Center and Pentagon following the 9/11 attacks,” (4) “I earned a PhD (doctoral degree) in Oceanography from Cornell University.  I earned my M.D. from the Armed Forces Institute of Pathology,” (5) “I did two combat tours in Vietnam,” (6) “I earned a Purple Heart in Vietnam when I was shot in the leg,” (7) “My voice is hoarse because during Vietnam I used to be a tunnel rat and clear out tunnels and the enemy used tear gas on me,” (8) “I earned my third Purple Heart while disarming a SCUD missile during Desert Storm,” (9) “I earned my third Purple Heart while de-mining in Bosnia,” (10) “I was in Afghanistan in 1991 to support de-mining operations,” (11) “I am an expert in Soviet munitions,” (12) “An EOD unit requested my assistance in recovering dead bodies of sailors lost during a maritime intercept operation,” (13) “I dove for the remains of the Space Shuttle Challenger explosion,” (14) wrongfully and dishonorably distributed a business card indicating that he held an M.D. (medical doctor) and held a PhD (doctorate in philosophy),  and (15) wrongfully and dishonorably distribute a DD-214 purporting that he was authorized to wear the Purple Heart with two stars, the Vietnam Cross for Gallantry with clasp and palm, the Republic of Vietnam Campaign Medal with clasp, the Philippine Presidential Unit Citation with clasp, the Presidential Unit Citation with one star, the Combat Action Ribbon, and the Vietnam Service Medal (with three stars); and Article 134 (Wearing unauthorized insignia, decoration, badge, ribbon device, 5 specifications: wrongfully and without authority wear upon his uniform (1) the ribbons and stars representing three Purple Hearts, (2) the device representing the Senior EOD Pin, (3) the device representing the Naval Parachutist Wings, (4) the device representing the Diving Officer Pin, and (5) the device representing the Diving Medical Officer Pin).  

Issue 1:  (Decisional) ()  .  The Applicant contends he signed his resignation under “extreme duress” and the characterization of discharge is too harsh for the misconduct.  In paragraph 5 of his resignation letter, which he signed and which was witnessed by his counsel, the Applicant stated, “This resignation is voluntarily submitted free from any duress or promises of any kind.”  After hearing the Applicant’s testimony on this matter and learning that the Applicant was advised by his own defense counsel (a junior officer) to accept separation in lieu of trial, the NDRB determined that the Applicant was not under duress when he signed his letter of resignation. 

Based on the evidence of record, including the Applicant’s letter of resignation and his Memorandum for the Record dated 27 January 2002, the NDRB determined the allegations against the Applicant were valid.  The NDRB did note that he did in fact hold a Doctor of Education (Ed.D) degree from G_ W_ University, but not a Doctor of Philosophy (PhD) degree in either Education or Oceanography as he reportedly claimed.  The NDRB noted that, had the Applicant appeared before a general court-martial, he could have received a dishonorable discharge and up to 5 years in confinement.  The NDRB opined that the Applicant’s commander had offered him a more lenient means of departing the Navy via an Under Other Than Honorable Conditions discharge based on the number of violations involved and seriousness of his misconduct.

Issue 2:  (Decisional) ()  .  The Applicant contends his discharge does not accurately reflect his overall character of service.  Based on a Naval Criminal Investigative Service (NCIS) report of 3 June 2002, the Applicant had been the subject of a previous investigation initiated in 1994 for wearing unauthorized ribbons and decorations. A review of the Applicant’s Marine Corps Service Record Book Offenses and Punishments Form 1070 revealed that on 10 January 1973, the Applicant received NJP for wearing unauthorized ribbons.  Additionally, in an NCIS report dated 26 November 2001, the Applicant (1) admitted that he had arranged to have a false document placed in his service record reflecting a senior explosive ordnance disposal (EOD) qualification; (2) admitted to never attending basic EOD school in the military; (3) admitted to not being entitled to wear a naval diving officer qualification badge and not being a medical doctor; (3) stood by the rest of his military record, to include his purple hearts.”  The NDRB determined that the Applicant had not been truthful throughout his career regarding his awards and academic credentials and related distinction and he had lied to investigators and falsified documents on several occasions to misrepresent his naval career accomplishments.  His actions and conduct constituted a significant departure from that required of an officer of the Naval Service.  The NDRB determined the that any other characterization of discharge would be clearly inappropriate.

Issue 3:  (Decisional) ()  .  The Applicant contends his post-service conduct and achievements warrant consideration for an upgrade in characterization.  Besides the Applicant’s statement with his DD Form 293, he failed to provide sufficient documentation and evidence on his behalf to support a post-service conduct review.  Most of his documentation was primarily in-service related.  The Applicant’s statements regarding his post-service conduct, without sufficient documentary evidence, are not sufficient to form a basis of relief.  On page 4, Item 8, in the instructions for completion of DD Form 293, the Applicant is notified to submit evidence "which substantiate or relate directly to your issues in Item 6 (Issues: Why an upgrade or change is requested and justification for the request).  Additionally, upon receipt of the Applicant's DD Form 293, the NDRB mails an acceptance letter that includes Information Concerning Review Procedures, which discusses the submission of additional documents in paragraph 3, Submission of Evidence, and in the last section on page 4, Information Pertaining to a Review Based Upon Post-Service Conduct.  However, even if the Applicant could have produced additional evidence to support a review based on his post-service conduct, the Applicant must have a full understanding that favorable post-service conduct alone does not guarantee a discharge upgrade.  Based on the seriousness and number of offenses committed, and the lack of documentary evidence of favorable post-service conduct, the Board determined the awarded characterization was warranted.  

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, and discharge process, the Board found  Therefore, the awarded characterization of service shall   and the narrative reason for separation shall remain .

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe 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:  After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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.  There are veterans organizations such as the American Legion and the Association of Service Disable Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade.  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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB.  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 NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the NDRB’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 BCNR can make changes to reenlistment codes.  Additionally, the NDRB 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, 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 other medical related reasons.  Only the BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.  

Post-Service Conduct:  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  Outstanding post-service conduct, 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, is considered during Board reviews.  Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle.   The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate  in-service misconduct was an aberration and not indicative of the member’s overall character.

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 special 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.  The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership:  The names and votes of the members of the NDRB 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