ex-LT, USN

Current Discharge and Applicant’s Request

Application Received: 20081222
Characterization of Service Received:  
Narrative Reason for Discharge: ACTS OF MISCONDUCT NOT OTHERWISE LISTED
Authority for Discharge:  SECNAVINST 1920.6B (ADMINISTRATIVE SEPARATION OF OFFICERS)

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

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	NFIR	Active:		20010514 - 20030508  
					To accept commission 

Period of Service Under Review:
Date of Appointment:  20030509	Age at Enlistment:  
Period of Appointment:  Indefinite
Date of Discharge:  20080430	Highest Rank:  LT
Length of Service:   Year(s)     Month(s)   22 Day(s)
Education Level:  
Fitness Reports:  

Awards and Decorations (per DD 214):	Pistol    (2)     JSCM 

Periods of UA/CONF:  

NJP:  
- 20070807:	Article 92 (General Orders Violation - Fraternization)
	Awarded: Punitive letter of reprimand  Suspended:  

SCM:     SPCM:     CC:     Retention Warning Counseling:  

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:  

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

Applicant’s Issues

1.  General discharge doesn’t accurately reflect his character of service.  
2.  Sexually harassed by an enlisted female subordinate.

Decision

Date:  20090416     	Location:  Washington D.C.	Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  ACTS OF MISCONDUCT NOT OTHERWISE LISTED.

Discussion

:  ()  .  The Applicant’s representative avers the general discharge (under honorable conditions) does not accurately reflect his character of service and he is therefore requesting an upgrade.  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.  The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the characterization of service or reason for discharge if such a change is warranted. 
The Applicant’s record of service reflects an investigation was convened to inquire into the events surrounding the allegations of fraternization concerning the Applicant and an enlisted subordinate.  The Applicant admitted to engaging in an unduly familiar physical relationship with an enlisted staff member.  On 7 August 2007, he was awarded NJP for violation of the Uniform Code of Military Justice (UCMJ):  Article 92 (Failure to obey an order or regulation – fraternization), for wrongfully engaging in inappropriate physical relations with a first class petty officer on `divers’ occasions.  The Applicant’s commanding officer forwarded a NJP Report of 5 September 2007 to the Commander, Navy Personnel Command (PERS 4834) recommending retention based on the fact the Applicant : 1)  Brought the matter (fraternization) to the chain of command, 2) Understood the serious nature of his transgression, 3) Expressed remorse, and 5) Had a stellar record and reputation.  

Pursuant to the Commander, Navy Personnel Command (PERS -834), letter of 27 December 2007, the Applicant was notified there was sufficient evidence to separate him from the service due to Misconduct –commission of a serious offense and substandard performance of duty and recommended a characterization of service as General (Under Honorable Conditions).  The Applicant submitted a letter of resignation of 22 January 2008, requesting a reconsideration of his characterization of service to honorable; he admitted to making a mistake and displaying a significant lapse of judgment.  The Applicant was subsequently discharged with a General (Under Honorable Conditions).  The Applicant’s representative submitted several character witness statements, medical records, and in-service records in support of this petition.  Taking into consideration the evidence of record, the Applicant’s statement, seriousness of the offense committed, age, rank and length of experience of the Applicant, the Board determined the awarded discharge was appropriate and an upgrade would be inappropriate.  Additionally, the Applicant’s in-service performance was not sufficient to justify an upgrade.  

:  The Applicant and his representative further contend the characterization of service should be upgraded because the Applicant was sexually harassed and continuously threatened by an enlisted female.  In support of this contention the Applicant provided photos of his damaged vehicle.  The Applicant stated he did not report the harassment at the time because he did think anyone would believe him so he attempted to have her moved and once those attempts failed, he brought the matter to the command’s attention.  As noted above, the Applicant, an officer with four years of active duty experience, admitted to engaging in an unduly familiar relationship with an enlisted female subordinate. There is no evidence in the record nor provided by the Applicant to support this contention regarding sexual harassment.  The pictures of his damaged vehicle are not persuasive since the Applicant does not provide any evidence the enlisted female with whom he was fraternizing, vandalized his vehicle.  Based on the Applicant’ own statement, the alleged perpetrator did not admit to vandalizing his car and there are no witnesses listed.  Based on the Applicant’s failure to provide persuasive conclusive documentary evidence to support his allegations the Board found the contentions regarding sexual harassment to be without merit.   

After a thorough review of the available evidence, to include the Applicant’s Summary of Service,   Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found   

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 II, Para 211, Regularity of Government Affairs, Part V, Para 502, Propriety and Para 503, Equity.

C.  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 92 (Fraternization).

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 or is referred to a court martial 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 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 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 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 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