ex-LCDR, USN

Current Discharge and Applicant’s Request

Application Received: 20101123
Characterization of Service Received: 
Narrative Reason for Discharge:  
Authority for Discharge: SECNAVINST 1920.6A

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

Summary of Service

Prior Service:
Inactive:	NONE		Active:	NONE

Period of Service Under Review:
Date of Appointment:  19830729	Age:  
Years Contracted:  Indefinite
Date of Discharge:  19971008	Highest Rank:  LCDR
Inactive:	 Years     Months   26 Days
Active	 Year     Months   15 Days
Education Level:  	AFQT:  NFIR
Officer Fitness Reports:  Available

Awards and Decorations (per DD 214):	NMCAM (2) JMUA MUC SSDR OSR (5) NDSM AFSM (2) AFRM AFEM

Periods of UA/CONF:  

NJP:  1

- 19970125:	Article 80 (Attempts, attempted to form an unduly familiar relationship with an enlisted female)
	Article 92 (Failure to obey order or regulation, failed to report back to his Reserve command in CONUS   
		         upon OCONUS relief of duty)
	Article 133 (Conduct unbecoming an officer and a gentleman)
	Awarded: Punitive Letter of Reprimand   Suspended:  

SCM:  NONE		SPCM:  NONE		CC:  NONE		Retention Warning Counseling:  NONE

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 1920.6A (ADMINISTRATIVE SEPARATION OF OFFICERS), effective 21 November 1983 until 12 December 1999 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 15 October 1981.

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, Articles 92 and 133.

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

Applicant’s Issues

1.	Applicant seeks a discharge upgrade to increase employment opportunities.
2.	Applicant contends his discharge was improper/inequitable based on his claim that false allegations were made against him due to a previous Equal Opportunity complaint he filed against an Air Force officer.
3.	Applicant contends he was racially discriminated against by the Navy.
4.	Applicant contends his NJP was unconstitutional, because his attorney was not present.
5.	Applicant contends his discharge was inequitable based on his record of service.

Decision

Date:  20120328		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 Board completed a thorough review of the circumstances that led to his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included one nonjudicial punishment (NJP) for violations of the Uniform Code of Military Justice (UCMJ): Article 80 (Attempts, attempted to form an unduly familiar relationship with an enlisted female), Article 92 (Failure to obey order or regulation, failed to report back to his Reserve command in CONUS upon relief of duty from temporary additional duty in Vicenza, Italy), and Article 133 (Conduct unbecoming an officer and a gentleman).  Violations of UCMJ Article 92 and 133 are considered commission of a serious offense and are punishable by confinement from 6 months to two years and/or dismissal if adjudicated at trial by court-martial.   Based on the offenses committed by the Applicant, his command could have referred him to trial by court-martial.  However, his command opted to adjudicate his offenses at NJP and then process him for administrative separation due to commission of a serious offense.  On 31 Jan 1997, the Applicant was released from active duty and subsequently assigned to a Volunteer Training Unit (VTU) in IDT non-pay status.  On 22 Jul 1997, the Chief of Naval Personnel directed that the Applicant show cause for retention.  After three attempts to notify the Applicant and receive his acknowledgment of rights, the Applicant failed to respond (CNATRA letter, dated 18 Sep 1997).  

On 1 Oct 1997, the Deputy Chief of Naval Personnel sent a memorandum to the Assistant Secretary of the Navy (Manpower and Reserve Affairs) stating, “(The Applicant) is a reserve Special Duty Officer (Intel) with 12 satisfactory years of Reserve service.  (The Applicant) has refused to respond to any official correspondence relative to his case and has thus waived his right to any further show cause proceedings.  He is therefore recommended for a General discharge.  Commanding Officer, Naval Air Station Joint Reserve Base Ft Worth ltr (3 Jun 97) reported (the Applicant) rec’d NJP on 25 Jan 97 for violations of UCMJ Art 80 attempts; Art 92 failure to obey a lawful order; and Art 133 conduct unbecoming an officer.  Specifically, (the Applicant), while on temporary recall to active duty at a joint intelligence command in Vicenza, Italy, attempted to form an unduly familiar relationship with an enlisted female by calling her and asking her out on dates.  As a result, (the Applicant) was ordered back to his reserve command in Dallas, TX.  Instead he proceeded to his residence in San Antonio, TX.  (The Applicant) was awarded a punitive letter of reprimand.  (The Applicant) submitted a bizarre appeal of his NJP, which alleged racism, extremist activities, and reprisals against him by his (Vicenza) chain of command.  He also claims, among other things, he was kidnapped, classified documents were written about him, all documents and charges brought against him are fraudulent, and the U.S. Air Force is unconstitutional.  He further states that “without dismissal, Secretary of the Navy, Secretary of the Air Force, and Secretary of the Army, may be summoned to Federal Court for violations created and highly evident in this manner.  (The Applicant) has filed a federal lawsuit to prevent issuance of the punitive letter of reprimand.  In that lawsuit, (the Applicant) accuses various Navy officials of among other things, bribery, involuntary servitude, violating his right to travel, and entering his apartment against his will and spending a night there while ‘keeping him awake.’  Reference (b) notified (the Applicant) of the initiation of show cause proceedings.  By reference (c), this notification went unclaimed by (the Applicant) despite three 

attempts at delivery.  Other efforts by (the Applicant’s) reserve chain of command to communicate with him, orally and in writing, have also failed.  By his refusal to acknowledge his rights, (the Applicant) waives his right to any further show cause proceedings.  (The Applicant’s) misconduct and subsequent unusual, if not irrational, behavior clearly shows he has no potential for further useful service.  A General discharge is appropriate and will afford (the Applicant) the opportunity to apply for assistance from the Veteran’s Administration, if he so chooses.  Recommendation: Separate (the Applicant) from the Naval Service with a General discharge.”  The Applicant was separated on 8 Oct 1997 with a General (Under Honorable Conditions) discharge due to Misconduct.

:  (Nondecisional)  The Applicant seeks discharge upgrade to increase employment 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.

Issues 2-4:  (Decisional) ()  .  The Applicant contends his discharge was improper/inequitable due to his claims that:  a) false allegations were made against him due to a previous Equal Opportunity complaint he filed against an Air Force officer; b) he was racially discriminated against by the Navy; and c) his NJP was unconstitutional because his attorney was not present.  The NDRB is not an investigative body, and allegations of command legal or administrative impropriety should be made to the Naval Inspector General’s Office.  Allegations notwithstanding, the NDRB conducted a detailed examination of the Applicant’s records to determine whether his discharge met the pertinent standards for propriety and equity.  After detailed analysis of and deliberation on all the available evidence, to include documentary evidence and statements submitted by the Applicant, the Board could find no evidence of command impropriety in his discharge for misconduct as a result of violating UCMJ Articles 80, 92, and 133.  Accordingly, and with no evidence submitted on the Applicant’s behalf to rebut or otherwise question the presumption of regularity in this case, the Board found this issue to be without merit and therefore did not provide a basis for which relief could be granted.  Relief denied.

Issue 5:  (Decisional) ()  .  The Applicant contends his discharge was inequitable based on his record of service.  Despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Naval Service in order to maintain good order and discipline; violation of UCMJ Articles 80, 92, and 133 meet this standard.  Per the Naval Military Personnel Manual, an Honorable characterization of service is warranted when the quality of a member’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 member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweigh the positive aspects of the member’s service record.  The Applicant’s record of service included an NJP, received as a Lieutenant Commander, for violations of UCMJ Articles 80 (Attempts, fraternization), 92 (Failure to obey an order or regulation), and 133 (Conduct unbecoming an officer).  Violations of these articles are considered serious offenses and are punishable by a dismissal (punitive discharge) and up to two years imprisonment if awarded at trial by court-martial.  After careful examination of and deliberation on the available evidence, the Board determined that the Applicant’s discharge was proper and equitable and in accordance with the applicable orders and directives in effect at the time of his separation.  Relief denied.

Issue 6:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant submitted a statement on 31 December 2010 that outlined his post-service achievements, an application that he filed with the Department of Energy to build a hydroelectric plant, and other documentation to show that he was a candidate for mayor of the 8th largest city in the United States and for the U.S. House of Representatives.  The NDRB considers 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.  The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum, however, completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration.  To warrant an upgrade, the Applicant’s post-service efforts need to be more encompassing.  The Board determined that the documentation submitted by the Applicant does not demonstrate if in-service misconduct was an aberration.  The characterization of service received was appropriate considering the length of service and UCMJ violations.  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries and the administrative separation 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