ex-ENS, USN

Current Discharge and Applicant’s Request

Application Received: 20140305
Characterization of Service Received:   
Narrative Reason for Discharge:    
Authority for Discharge:   SECNAVINST 1920.6C

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

Summary of Service
Prior Service:
Inactive: USN (ROTC)	20040701 - 20080522  	Active:	

Period of Service Under Review:
Date of Appointment:  20080523	Age: 22  
Years Contracted:  Indefinite
Date of Discharge:  20091130 	Highest Rank:  ENS  
Length of Service:   Year(s)     Month(s)   08 Day(s)
Education Level:  	AFQT:  NFIR
Officer’s Fitness reports:  Available

Awards and Decorations (per DD 214):	Rifle  Pistol   

Periods of UA/CONF:  

NJP:  

- 20081210:	Article  (Drunk or reckless operation of vehicle, aircraft, or vessel) 
	Awarded: WRITTEN ADMONITION   Suspended:    

SCM:  	SPCM:    

CC:    [Extracted from Commander, Navy Personnel Command, letter dated 9 October 2009]

- Date NFIR:	Offense:  Driving under the influence (DUI) and driving without headlights
	Sentence:  40 hours community service, $800.00 fine, 24 hours jail time, one year probation, participate in a “Victims Impact Panel”, attend DUI Driving School, attend alcohol treatment, and a four month suspension of his driver’s license

Retention Warning Counseling:  

NDRB Documentary Review Conducted (date):	20130129
NDRB Documentary Review Docket Number:	ND12-00775
NDRB Documentary Review Findings:		Proper as issued and that no change is warranted.

Administrative Corrections to the Applicant’s DD 214

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

	  “SECNAVINST 1920.6C”
	
The NDRB will recommend to the Commander, Navy Personnel Command, PERS-312A, 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 1920.6C (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 it is inequitable that he has to repay the Navy for his education at the Naval Academy because of his narrative reason for separation.
2.	The Applicant contends his discharge was improper because it is his contention that the University of Georgia Police Report does not definitively demonstrate he committed misconduct by documenting he consumed four beers and one shot in four hours which should only have produced a BAC of approximately 0.06. 
3.	The Applicant contends his discharge was improper because he wished to remain in the Navy and was not recommended for a show cause board.
4.	The Applicant contends his narrative reason for separation is inequitable compared to the narrative reasons given to others under similar circumstances.
5.	The Applicant contends his narrative reason for separation is inequitable because it is based on an isolated incident.
6.	The Applicant contends his post-service conduct is worthy of an upgrade.

Decision

Date:  20141020		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   for  of the Uniform Code of Military Justice (UCMJ): Article 111 (Drunk or reckless operation of vehicle, aircraft, or vessel) and one civilian conviction for driving under the influence and driving without headlights.  Based on the offense committed by the Applicant,  command administratively processed  for separation.  The Applicant’s command recommended he not be required to show cause for retention.  However, the Commander, Navy Region Southeast, as the first endorser of the Applicant’s report of NJP, recommended he show cause for retention.  The Applicant’s statement to this board indicates he did not participate in a show cause proceeding.  The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived  rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority review. 

:  (Nondecisional) The Applicant contends it is inequitable that he has to repay the Navy for his education at the Naval Academy because of his narrative reason for separation.  Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.  The NDRB has no authority to upgrade a discharge for the sole purpose of cancelling a debt to the government concerning the repayment of incurred educational expenses due to a breach of contractual terms on the part of the Applicant.  This issue does not serve to provide a foundation upon which the Board can grant relief. 

:  (Decisional) ()  .  The Applicant contends his discharge was improper because it is his contention that the University of Georgia Police Report does not definitively demonstrate he committed misconduct by documenting he consumed four beers and one shot in four hours which should only have produced a BAC of approximately 0.06.  The Board reviewed all materials presented and determined that the police report clearly cited the Applicant failed multiple portions of the field sobriety test and refused to submit to a Breathalyzer test.  The record of evidence demonstrates that the Applicant plead “no contest” to the civilian charges concerning his driving under the influence and driving without headlights as well as his acceptance of nonjudicial punishment for violation of the UCMJ: Article 111.  If the Applicant felt he was mistakenly charged with criminal activities, it was his obligation to contest those charges at the time they were made.  During his civil trial and military justice proceedings, he had the opportunity to mount a defense against the charges.  A servicemember 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 UCMJ 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 record shows the Applicant freely admitted his guilt at both military and civil proceedings and the NDRB determined that no other narrative reason for separation more clearly reflects the reason for his administrative separation.  Relief denied. 

:  (Decisional) ()  .  The Applicant contends his discharge was improper because he wished to remain in the Navy and was not recommended for a show cause board.  A commissioned officer on the active duty list with less than five years of active commissioned service is considered a probationary officer.  Neither a hearing nor a board proceeding is required for probationary officers to show cause for retention.  The Applicant readily admitted his culpability for his misconduct by pleading “no contest” to his civil charges and in accepting his nonjudicial punishment.  The NDRB determined the Applicant’s separation was proper for Misconduct.  Relief denied.

4:  (Decisional) ()  .  The Applicant contends his narrative reason for separation is inequitable compared to the narrative reasons given to others under similar circumstances.  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.  While other members of the Naval Service may have been charged with the same or similar offenses, each case must stand on its own merits.  Commanding officers and separation authorities are allowed to consider matters for extenuation and mitigation unique to each individual.  Therefore no two cases, no matter how similar, are guaranteed to receive the same punishment.  Based upon available records, nothing indicates that the Applicant’s narrative reason for 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 misconduct, that separation from the Naval Service was appropriate, and that no other narrative reason for his separation was warranted.  Relief denied. 

5:  (Decisional) ()  .  The Applicant contends his narrative reason for separation is inequitable because it is based on an isolated incident.  The Applicant’s record of service shows he had approximately six months of commissioned service at the time of his nonjudicial punishment.  After the Applicant’s nonjudicial punishment was imposed and the appeal process completed, the Assistant Secretary of the Navy, Manpower and Reserve Affairs, reviewed the Applicant’s complete record of service and determined separation was warranted with an Honorable service characterization.  The Applicant was administratively separated and not separated upon fulfillment of his service obligation.  Per Secretary of the Navy Instruction 1920.6C, Administrative Separation of Officers, an officer may be processed for separation for the “commission of a military or civilian offense which could be punished by confinement of six months or more and any other misconduct which would require specific intent for conviction.”  The Applicant’s nonjudical punishment finding was that he was guilty of violating UCMJ: Article 111.  Per Appendix 12 of the Manual for Courts-Martial, violation of Article 111 is considered a serious offense because it could result in six months confinement and a punitive discharge as the result of a Special or General Court-Martial.  After a thorough review of the circumstances and evidence presented in this case, the NDRB found that no better narrative reason for separation exists to describe why the Applicant was administratively discharged.  Relief denied. 

6:  (Decisional) ()  .  The Applicant contends his post-service conduct is worthy of an upgrade.  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 oral testimony, evidence of financial stability and continuous employment, awards for civilian service in support of the Global War on Terrorism to include support rendered in a combat zone, and an email chain documenting a similar incident involving another officer.  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 applauds the Applicant’s civilian service in support of the Global War on Terrorism and his productivity in the workforce; however the Board determined that the documentation submitted by the Applicant neither mitigates nor demonstrates that his narrative reason for separation was inappropriate.  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 is not eligible for further reviews by the NDRB.  The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149.  Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm.  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