ex-MM3, USN

Current Discharge and Applicant’s Request

Application Received: 20100128
Characterization of Service Received:    
Narrative Reason for Discharge:    
Authority for Discharge:   MILPERSMAN 

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

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	19991116 - 20000716  	Active:		20000717 - 20050721  

Period of Service Under Review:
Date of Current Enlistment:  20050722	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20070806	Highest Rank/Rate:  MM2
Length of Service:   Year(s)     Month(s)   16 Day(s)
Education Level:  	AFQT:  85
Evaluation Marks:	Performance:  4.0 (3)	Behavior:  2.67 (3)	OTA:  3.43

Awards and Decorations (per DD 214):	NMCAM,   (3)   (2)   

Periods of UA/CONF:  
 
NJP:  

- 20050910:	Article  (Failure to obey a lawful order – wrongfully engaging in an unduly relationship with an Officer)
	Article  (General – Adultery)
	Awarded:     Suspended:  

SCM:  	SPCM:  	CC:  

Retention Warning Counseling:  

- 20050910:	For violation of UCMJ articles 92 (Failure to obey a lawful order – wrongfully engaging in an unduly relationship with an Officer) and 134 (General – Adultery) CO’s NJP held this date.

Administrative Corrections to the Applicant’s DD 214

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

	  “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 000717 UNTIL 050721”

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/To Representation:		From/To Congress member:	
                    Other Documentation:	

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 20 June 2005 until 28 May 2008, Article 1910-122, Separation By Reason of Convenience of the Government - Personality Disorder(s).

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.

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

Applicant’s Issues

1.	Wrongfully discharged after sexually traumatized by high ranking officer.
2.	Personality disorder never professionally diagnosed.

Decision

Date:  20100319		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.  The Applicant’s record of service included one NAVPERS 1070/613 (Page 13) warning and one  for  of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey a lawful order – wrongfully engaging in a relationship with an officer) and Article 134 (Adultery).  When notified of administrative separation processing using the  procedure, the Applicant waived  rights to consult with a qualified counsel, submit a written statement, and request an administrative board. 

:  (Decisional) ()  . The Applicant is seeking an upgrade to Honorable and contends that she was wrongfully discharged after being sexually traumatized by a high ranking officer and discharged based on a personality disorder that was never professionally diagnosed.  The Applicant also contends that immediately after reporting the incident to the command’s psychologist to obtain treatment she was punished and the officer was “never truly punished for what he did.”  The evidence of record also contains a letter the Applicant addressed to her senator signed 04 November 2009, which contained the following statements: 1) during the fall of 2004 an officer in the Applicant’s chain of command removed her from the training department after he harassed her for missing certain questions and insulted her during interviews, 2) in 2005 the officer invited her and a coworker to his home and she went to avoid insulting him, 3) while at his home she met his wife and kids and discussed work, 4) the officer became more flirtatious over time and informed her that he was experiencing marital problems, 5) she offered him marital advice and then he began pursuing her, 6) she felt uncomfortable as a result of his gestures “but did not tell him the truth” because she did not want to upset him, 7) during this time she decided to reenlist and the officer “insisted on throwing the party” for her at his home and she eventually agreed, 8) the day prior to the reenlistment ceremony the officer unexpectantly appeared at her house and they went to a restaurant almost two hours away,  9) during the drive back home the officer purchased liquor and they became so inebriated that the Applicant was blacking out and the officer was driving all over the road, 10) they got a hotel for the night and the Applicant had sex with the officer, 11) she was too ashamed to tell anyone and blamed herself  “ for allowing myself to be put in that position”, 12) once back on the ship, the officer frequently invited the Applicant to his stateroom and visited her while she was standing watches, 13) eventually, a shipmate reported the inappropriate fraternization to the ship’s security department and the Applicant was apprehended and interrogated extensively, 14) the Applicant was subsequently awarded NJP and sought counsel with the ship’s psychologist, 
15) the Applicant was referred to a counselor who informed her that she had been sexually abused, 16) a year later, while assigned to the USS CARL VINSON (CVN 70) someone hacked into her yahoo account and found emails forwarded to her from another officer who had previously been stationed with her, 17) after being questioned and told that she would get into a lot of trouble, the Applicant became scared and checked into the psychology department at Naval Hospital Portsmouth, where she expressed her fear of staying in the Navy and being hurt by the situation she faced, 18) the Applicant received threatening email from the officer after being discharged from the Navy and was denied assistance from Naval Criminal Investigative Service agents because the officer was no longer on active duty, 19) the Applicant indicates that she was labeled an adulterer because she was raped by a high ranking officer.

The evidence of record reflects on 17 -18 September 2005 the Applicant was seen by a ship’s psychologist onboard the USS HARRY S. TRUMAN (CVN-75) who indicated the following: 1) the Applicant self referred for emotional liability since the discovery of her four month inappropriate relationship with a senior member of her chain of command, 2) she reported constant feelings of either rage/anger, then depression and feelings of shame, guilt and disappointment for not stopping the inappropriate behaviors and advances, 3) she initially saw him as a mentor and went to him when she was in a “professional quandary”, 4) the Applicant was diagnosed as having an adjustment disorder with mixed anxious and depressed mood, determined to be fit for duty and responsible for her actions, and recommended for continuation of supportive therapy.  The record of evidence also indicates the Applicant was admitted to the psychiatric ward from 15 – 28 June 2007 for crisis intervention and recommended for expeditious administrative separation from the military based on a severe personality disorder –adjustment disorder.   

Based on the evidence of record, documentary evidence and statement provided by the record as previously discussed, the NDRB determined that there was sufficient evidence to discharge the Applicant due to a personality disorder and the characterization of service as General (Under Honorable Conditions) is appropriate in light of offenses committed by the Applicant, her age, length of service and overall record.  In regard to the Applicant’s contention that her discharge was wrongful because she was sexually assaulted, the Board determined that this contention is without merit and refuted by the evidence of record and her own statement which reflects that she sought out and received mental health evaluations, diagnosis and counseling by competent mental health providers.  She never told the officer to stop making advances, and made a choice to engage in an unduly familiar relationship for which she was punished at NJP.  Moreover, there is no indication that the Applicant informed the chain of command of the officer’s inappropriate sexual advances, nor did she seek out the mental health provider until after she was reported for fraternizing and an investigation had ensued.  Furthermore, the Applicant admitted to visiting the officer’s home, going to a restaurant out of town with him, drinking excessively, and spending the night at a hotel where she ultimately had sex with this officer whom she knew to be married. 

In regard to the Applicant’s contention that the officer was not “truly punished”, there is no evidence in the record nor provided by the Applicant regarding the disciplinary action taken against the officer by the command.  However, it appears that the officer is no longer on active duty as indicated by the Applicant’s statement that investigators told her they could not get involved because the officer was “ not a full active duty officer ”  when she reported the officer for sending her threats via email.  The Board does acknowledge that acts of sexual advances/aggression and threats to an enlisted member by a senior officer is illegal, inappropriate and detrimental to good order and discipline; even so, the Applicant is not relieved of her obligation to say no to these sexual advances and report such misconduct.  

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  .  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of her discharge.  The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct. 

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 Disabled American 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 their 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