ex-ENS, USN

Current Discharge and Applicant’s Request

Application Received: 20100427
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  SECNAVINST 1920.6B

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

Summary of Service

Prior Service:
Inactive: USN (ROTC)	20021206 - 20050505  	Active:	USN	20001228 - 20050505  HON

Period of Service Under Review:
Date of Appointment:  20050506	Age:  
Years Contracted:  Indefinite
Date of Discharge:  20060417	Highest Rank:  ENS
Length of Service:  00 Year(s)     Month(s)   12 Day(s)
Education Level:  	AFQT:  91
Officer’s Fitness reports:  Available

Awards and Decorations (per DD 214):	Pistol , , 

Periods of UA/CONF:  

NJP:  

- 20051013:	Article  (Wrongful use, possession, etc., of controlled substance). 
	Awarded: NFIR             Suspended:  NFIR

SCM:  	SPCM:  		CC:  	Retention Warning Counseling:  

Administrative Corrections to the Applicant’s DD 214

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

	  “”

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:		Rehabilitation/Treatment:		Criminal Records:	
	Personal Documentation:		Community Service:		References:	
	Department of VA letter:		Other Documentation:	
		Additional Statements:
	From Applicant:		From/To Representation:		From/To Congress member:	

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.

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 Article 112(a) of the UCMJ. 

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

Applicant’s Issues

Decisional issues: The Applicant contends that his discharge characterization of service was inequitable, that it was an isolated incident and one-time lapse in judgment in 64 months of what was otherwise honorable service in positions of leadership.  

Decision

Date:  20110818	         	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 NDRB 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 identified one decisional issue for the NDRB’s consideration.  In addition, the NDRB completed a thorough review of the circumstances that led to  discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety.  

The Applicant’s total record of service includes one honorable period of enlisted service as an Electronics Technician.  He was commissioned as a regular officer on 06 May 2005.  The Applicant’s record of service included no NAVPERS 1070/613 (Page 13) retention-counseling warnings; however, it does contain one nonjudicial punishment for violation of the Uniform Code of Military Justice (UCMJ): Article 112(a) (Wrongful use, possession, etc of a controlled substance – specifically cocaine).  The Applicant’s record of service reflects no punitive actions.  The Applicant acknowledged his completed understanding of the Navy Policy Regarding the Illegal Use of Drugs – in writing – twice; once upon enlistment as part of his waiver process for pre-service illegal drug use (marijuana) and a second time, upon his commission as a Naval Officer on 06 May 2005.  In addition, the Applicant had attended and completed the PREVENT drug and alcohol education program on 31 August 2001.  Based on the violation of Article 112(a) of the UCMJ, processing for administrative separation was mandatory.

In accordance with Article 1920-120 of the Naval Military Personnel Manual (MILPERSMAN), the commission of Regular Navy Officers, holding appointments above chief warrant officer-4, with less than 5 years of continuous commissioned service, are subject to revocation by the Secretary of the Navy; this revocation is exercised through a Show Cause Authority.  The purpose of the Show Cause Authority is to review and evaluate the record of the Officer to determine whether that officer should be required, because of his purported misconduct, to show cause for his retention on active duty.  Prior to forwarding the Command’s recommendation for separation to the Show Cause Authority, the Applicant elected to exercise his right to submit an unqualified request for resignation in lieu of the administrative board proceeding (Show Cause - Board of Inquiry).   
The Commander, Naval Personnel Command, as the show cause authority, reviewed the Applicant’s unqualified request for resignation and approved it on 31 March 2006, directing that the Applicant receive a General (Under Honorable Conditions) characterization of his service and that he be separated from the Navy due to Misconduct (Serious Offense).  The Applicant was discharged, as such, on 17 April 2006.

(Decisional) ()  .  The Applicant contends that his discharge characterization of service was inequitable; that it was an isolated incident and one-time lapse in judgment in 64 months of what was otherwise honorable service in positions of leadership.  Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the  to maintain proper order and discipline.  Violation of Article 112a is one such offense requiring mandatory processing for administrative separation regardless of grade or time in service.  This usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial.  The command did not pursue a punitive discharge, opting instead for the more lenient nonjudicial punishment and show cause for retention process.  

An Honorable characterization of service is warranted when the quality of an officer’s service generally meets the standard of acceptable conduct and performance for naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate.  A General (Under Honorable Conditions) discharge is warranted when the quality of the officer’s service has been honest and faithful, but significant negative aspects of that officer’s conduct or performance of duty outweighed the positive aspects of his service record.  The Applicant’s record of service as a commissioned officer is marred with a nonjudicial punishment for illegal drug use–cocaine.  The Applicant was fully aware of the Navy Policy regarding illegal drug use and the most likely outcome of violating that policy, yet he chose to violate that policy knowingly and willingly.

The foundation of our success in the Navy lies in our ability to gain and hold the trust of our Sailors, including through personal example.  This responsibility is so important, it is written into Navy Regulations.  When confidence and trust are lost in those who lead, we fail.  It is fact that, as Naval Officers, we are held to a higher standard.  Those in leadership roles must exemplify the Navy’s core values of honor, courage, and commitment; we expect our Sailors to follow these values and we hold them accountable when they fail to do so.  Moreover, as a leader, we must be above reproach - our Sailors and Marines deserve nothing less.  In accordance with the U.S. Navy core values, we are required to conduct ourselves in the highest ethical manner in all relationships with peers, superiors, and subordinates and to be honest and truthful in our dealings with each other.  We are to abide by an uncompromising code of integrity, taking responsibility for our actions, and keeping our word and we are to fulfill, or exceed, our legal and ethical responsibilities in both our public and personal lives - 24 hours a day.  Furthermore, illegal or improper behavior, or even the appearance of such behavior, will not be tolerated.  As officers, we are accountable for our professional and personal behavior and are to remain mindful of the honor and privilege to serve.  
           
Having thoroughly reviewed the evidence of record as contained in the Applicant’s official service record, the NDRB determined that his service reflected significant negative aspects of his conduct and his performance of duties as outlined in the preceding paragraphs; these significant negative aspects did outweigh the positive aspects of his service during his commission.  The NDRB determined that the Applicant’s illegal use of drugs was in direct contradiction to the Navy policy and the professional performance of his duties as a Naval Officer and did outweigh his stellar technical proficiency.  He failed to take personal responsibility and accountability for himself and he failed to hold himself to the highest of standards as expected of a Naval Officer; the Applicant’s actions did not exemplify the Navy’s core values of honor, courage, and commitment.  After a thorough review of the records, and the facts and circumstances specific and unique to this case, the NDRB discerned no inequity in the characterization of the Applicant’s service at discharge.  The NDRB’s vote was unanimous that an upgrade is not appropriate and that relief is not warranted; therefore, the character of the discharge shall not change.  Relief denied.

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  discharge.  The Applicant is directed to the Addendum for additional information.

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