ex-LTJG, USN

Current Discharge and Applicant’s Request

Application Received: 20130124
Characterization of Service Received:   
Narrative Reason for Discharge:   
Authority for Discharge:   SECNAVIST 1920.6C

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

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	19980414 - 19980426  	Active:		19980427 - 20030426  
		20050517 - 20050622  			20050623 - 20050915  

Period of Service Under Review:
Date of Appointment:  20050916	Age:  27
Years Contracted:  Indefinite
Date of Discharge:  20110131	Highest Rank:  LTJG
Length of Service:   Year(s)     Month(s)   16 Day(s)
Education Level:  	AFQT:  82
Officer’s Fitness reports:  Available

Awards and Decorations (per DD 214):	      

Periods of UA/CONF:  

NJP:  	SCM:  	SPCM:  		Retention Warning Counseling:  

CC:  
- 20080912:	Offense:  Driving under the influence of alcohol and refusal of an alcohol test
	Sentence:  90 days of Jail time (90 days suspended), three years of unsupervised probation, fined $250.00 and his driver’s license restricted for 1 year.

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 1920.6C (ADMINISTRATIVE SEPARATION OF OFFICERS), effective 15 December 2005 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.

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

Applicant’s Issues

1.	The Applicant contends several of his fitness reports were improperly written.
2.	The Applicant contends an upgrade is warranted because of violations of law, rules, and policy that resulted in excessive delay, procedural errors, prejudice, and mental and physical suffering, and there were errors and violations of law and of policy and rules of the Department of Defense and of the Navy.
3.	The Applicant contends his roughly 10 years of combined active and reserve service prior to the incident were exceptional, and he was initially recommended for promotion and retention by his command.
4.	The Applicant contends he is an aspiring attorney who has served in respectable job positions since beginning law school.
5.	The Applicant contends his command had several other instances of alcohol-related incidents that may have influenced behavior on both sides.
6.	The Applicant contends his superiors were less than forthright about the nature of the existing forces against the Applicant, and they manipulated the facts in their favor. 

Decision

Date:  20131003		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 did complete a thorough review of the circumstances that led to  discharge and the discharge process to ensure  discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included  civilian conviction for driving under the influence and refusal of an alcohol Breathalyzer test.  Based on the offenses committed by the Applicant,  command administratively notified him of processing for separation.  When notified of administrative separation processing and directed to show cause by Navy Personnel Command (NPC), the Applicant exercised his right to a BOI and submitted a statement in his defense.  The Applicant’s BOI convened on 12 January 2010 and voted 3-0 for separation Under Honorable Conditions (General) for Misconduct (Other).

:  (Nondecisional)  The Applicant contends several of his fitness reports were improperly written.  In reviewing discharges, the NDRB may identify administrative errors in the Applicant’s record, particularly the DD Form 214, that fall within the scope of the NDRB’s responsibility to examine the propriety and equity of a discharge.  However, the NDRB does not have the authority to remove fitness reports from an official service record.  The Board for Correction of Naval Records (BCNR) can take these actions, and the Applicant can submit his request using DD Form 149 to the BCNR at 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490.  Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm.

:  (Decisional) ()  .  The Applicant contends an upgrade is warranted because of violations of law, rules, and policy that resulted in excessive delay, procedural errors, prejudice, and mental and physical suffering, and there were errors and violations of law and of policy and rules of the Department of Defense and of the Navy.  A service member may be processed for separation for the commission of a serious military or civilian offense when the offense or a closely related offense is a violation of the Uniform Code of Military Justice and warrants a punitive discharge in accordance with the Manual for Courts-Martial.  There is no requirement for adjudication by judicial or non-judicial proceedings, but the offense must be substantiated by a preponderance of the evidence.  The Applicant contends he notified his chain of command on 16 March 2008 of his civilian DUI arrest.  The record reflects his request for retention on active duty is dated February 2009, notification from Commander, NPC of administrative separation processing is dated 03 June 2009, his end of obligated service is September 2009 but he voluntarily remained on active duty after that date, his intent to submit a statement of appeal is dated 14 September 2009, NPC’s Notification for Show Cause proceedings is dated 17 September 2009, 

the Applicant’s election of a BOI is dated 29 September 2009, the BOI’s results are dated 12 January 2010 and recommended separation 3-0 Under Honorable Conditions (General), the approval of the BOI’s recommendations by the Assistant Secretary of the Navy (Manpower and Reserve Affairs) is dated 8 December 2010, and the Applicant’s separation from active duty occurred on 31 January 2011.  The NDRB conducted a detailed review of the Applicant’s contentions and thoroughly reviewed the service record and all applicable regulations and determined he received full due process and his discharge was proper.  Relief denied.

Issue 3: (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends his roughly 10 years of combined active and reserve service prior to the incident were exceptional, and he was initially recommended for promotion and retention by his command.  The Applicant contends his in-service and post-service accomplishments warrant consideration for an upgrade to Honorable.  The Applicant received Honorable discharges for two previous periods of active duty from April 1998 to April 2003 and from June 2005 to September 2005.  Each period of enlistment is an independent obligation and characterization is determined for that specific period of time.  The Applicant was commissioned on 16 September 2005 and remained voluntarily on active duty until his discharge date of 31 January 2011.  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 outweighed the positive aspects of the member’s service record.  After reviewing the Applicant’s statements and documentation and his service record as an officer, the NDRB determined his General discharge for Misconduct (Other) was equitable.  Relief denied.

Issue 4:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends he is an aspiring attorney who has served in respectable job positions since beginning law school.  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 provided a personal statement and a law-school memo of an expected graduation date of May 2014.  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.  The NDRB determined the characterization of service received was appropriate considering the length of service and misconduct.  Relief denied.

Issue 5:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends his command had several other instances of alcohol-related incidents that may have influenced behavior on both sides.  The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis.  If such a review reveals an impropriety or inequity, relief is in order.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service.  Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy.  A preponderance of the evidence reviewed supports the conclusion that the Applicant committed a serious offense, that separation from the Naval Service was appropriate, and that an Under Honorable Conditions (General) discharge was warranted.  Relief denied.

Issue 6:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends his superiors were less than forthright about the nature of the existing forces against the Applicant, and they manipulated the facts in their favor.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention the command treated him unfairly.  Contrary to his allegations, the NDRB found that his command provided sound counseling in their attempts to assist the Applicant in resolving his misconduct in support of his desire to continue his naval career.  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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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