ex- CDR, 

Current Discharge and Applicant’s Request

Application Received: 20160412
Characterization of Service Received:   
Narrative Reason for Discharge:   UNACCEPTABLE CONDUCT
Authority for Discharge:   SECNAVINST 1920.6C 

Applicant’s Request:	Characterization change to:	
Narrative Reason change to: RETIREMENT
Reentry Code change to: NONE REQUESTED

Summary of Service

Prior Service:
Inactive:   	   		Active:	 19920114 - 19950817  

Period of Service Under Review:
Date of Appointment:  19950818	Age:  26
Years Contracted:  Indefinite
Date of Discharge:  20150531	Highest Rank:  CDR
Length of Service:  19 Year(s)     Month(s)   03 Day(s)
Education Level:  	  
Officer’s Fitness reports:  Available

Awards and Decorations (per DD 214):	Rifle  AIR MEDAL(2) DMSM NMCCM(3) NMCAM(3) NAVY "E" NDSM(2) ICM   

Periods of UA:  NONE
Periods of CONF:  NONE
Other Time Lost per DD214:  NONE

NJP:  

- 20150505:	Article 92 (Failure to obey order, regulation) 2 specifications
	Article 133 (Conduct unbecoming officer) 2 specifications
	Awarded:     Suspended:      

SCM:  	SPCM:  	CIVIL ARREST:  		Retention Warning Counseling:  

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 Commandant of the Marine Corps or Commander, Navy Personnel Command that the DD 214 be corrected as appropriate.

Types of Documents Submitted/reviewed

	DD 214:		Service/Medical Record:		Other Records:	
	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 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 IV, Para 403m(7)(a), Presumption Concerning Court-Martial Specifications.

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

Applicant’s Issues

1.	The Applicant contends that his “otherwise meritorious service record is worthy of an Honorable service characterization” and the narrative reason for separation should be changed to “Retirement.”  
2.	The Applicant contends that he “and the complaining witness engaged in an unprofessional, but entirely consensual relationship” and that the “evidence does not support any finding of sexual harassment.” 

Discussion

Date:  20160502		Location:  WASHINGTON D.C.	Representation:  

The Naval Discharge Review Board (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 the discharge and the discharge process to ensure the pertinent standards of equity and propriety were met.  

The Applicant's record of service included:

  for  of the Uniform Code of Military Justice (UCMJ): 
	Article 92 (Failure to obey order, regulation) 2 specifications
	Article 133 (Conduct unbecoming officer) 2 specifications

Based on the Applicant’s unacceptable conduct, he was subject to mandatory retirement required by law.  When notified of administrative separation processing, the Applicant  their rights to consult with a qualified counsel and appear before a Board of Inquiry. 

:  The Applicant contends that his “otherwise meritorious service record is worthy of an Honorable service characterization” and the narrative reason for separation should be changed to “Retirement.”  The Applicant (through counsel) references SECNAVINST 1920.6C to include “When the separation is solely for reasons constituting substandard performance of duly or solely for remove of ecclesiastical endorsement, the characterization must be Honorable.”

The record shows that the Applicant’s separation was not solely for reasons constituting substandard performance.  The record shows that at the Applicant’s Board of Inquiry (BOI), in addition to substandard performance, the preponderance of evidence also supported misconduct.  At the BOI held on 23 January 2015, the Board voted 3-0 that the preponderance of evidence supported misconduct to include violations of UCMJ Article 92 ( two specifications: Fraternization and Sexual Harassment) and violations of UCMJ Article 133 (two specifications: Conduct unbecoming an officer and gentlemen) in addition to Substandard Performance (Failure to demonstrate acceptable qualities of leadership required of an officer in your grade and Failure to conform to prescribed standards of military deportment).  The Board recommended that the Applicant be separated with a characterization of service of General (Under Honorable Conditions) based on the guidance of enclosure (5) of SECNAVINST 1920.6C.  In this enclosure, the guideline for General (Under Honorable Conditions) is the following:  “If an officer's service has been honest and faithful but significant negative aspects of the officer's conduct or performance of duty outweigh the positive aspects of the officer's military record, it is appropriate to characterize that service as General (Under Honorable Conditions).”  The NDRB determined that the Applicant’s Under Honorable Conditions (General) characterization of service and narrative reason for separation, Unacceptable Conduct were warranted.

:  The Applicant contends that he “and the complaining witness engaged in an unprofessional, but entirely consensual relationship” and that the “evidence does not support any finding of sexual harassment.” 

The record shows that at the Applicant’s BOI, the Board voted 3-0 that the preponderance of evidence supported Misconduct – Violation of UCMJ Article 92, Failure to obey order or regulation (Sexual Harassment).  In response, the Applicant’s counsel wrote a Letter of Deficiency (10 April 2015) stating that the Board’s finding that the Applicant committed sexual harassment was not supported by a preponderance of evidence.  He stated that the evidence showed that the relationship was consensual and that the Midshipman’s claim that her interactions with the Applicant were sexual harassment were self-serving and by “disclaiming all criminal culpability in the relationship, she escaped any punishment/repercussion for engaging in an unprofessional relationship with a married, senior Officer.”  In the Applicant’s personal statement to the NDRB, he states that the Midshipman was not called to testify at the BOI.  This was not mentioned in the Letter of Deficiency and it is not known if the Applicant’s counsel attempted to have her testify at the BOI.  In a response to the Applicant’s Letter of Deficiency (04 May 2015), it was stated that the “government presented competent evidence that the conduct was not consensual.”  In this response, it is also stated “that even if the reviewing authority were to find that the respondent’s conduct did not meet the standard of reference (c) (for sexual harassment), the Board nevertheless found that he committed misconduct by engaging in fraternization and conduct unbecoming an officer and gentlemen.” In this response, it is further stated that “[t]he respondent does not dispute that his actions, even if consensual, meet this standard of misconduct.  These grounds alone are an appropriate basis for separation and a general under honorable conditions character of service.  The government submits that the facts presented in this case are egregious enough to justify the board’s decision on any one of their determinations of misconduct and it should not be disturbed.”  The NDRB determined that due to the Applicant’s misconduct, the characterization of service that he received was proper, equitable, and consistent with the characterization of service given others in similar circumstances.  

Decision

After a thorough review of the available evidence, to include the Applicant’s issues, summary of service,  record entries, and discharge process, the Board found  at the time of discharge. Therefore, the awarded characterization of service shall  UNDER HONORABLE CONDITIONS (GENERAL), the narrative reason for separation shall  UNACCEPTABLE CONDUCT with a corresponding separation code of SNC.  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of the 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/.  More information is available at http://www.secnav.navy.mil/mra/CORB/pages/ndrb/default.aspx.

Additional Reviews: After a document review has been conducted, former members are eligible for a personal appearance or telephonic 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, or http://www.secnav.navy.mil/mra/bcnr/Pages/default.aspx 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: Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code.  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-Traumatic Stress Disorder and/or Traumatic Brain Injury: For all claims involving PTSD and/or TBI, the NDRB’s review implemented the guidance set forth in the SECDEF Memorandum of 3 September 2014 (Supplemental guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder).  In accordance with U.S. Code, Title X, Section 1553 (d)(1) & d(2), the NDRB included a member who is a physician, clinical psychologist, or psychiatrist and accorded the case sufficient priority to achieve an expedited resolution and a final decision.

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.

Military Sexual Trauma: The Department of Veterans Affairs (VA) uses the term "military sexual trauma" (MST) to refer to experiences of sexual assault or repeated, threatening sexual harassment experienced while on federal active duty, active duty for training, or inactive duty training.  To get confidential one-on-one help please contact the MST Coordinator at your nearest VA Medical Center or Call Safe Helpline at 1-877-995-5247 or visit www.mentalhealth.va.gov/msthome.asp.

Reporting Military Sexual Trauma: To report a military sexual trauma, you can make an anonymous report to the Naval Criminal Investigative Service (NCIS) by Text or Online.  The NCIS Tip Line provides service members, veterans and civilians a safe, discreet and ANONYMOUS option to report criminal and force protection threats within the USN and USMC without concerns of retaliation.  To report a crime by Text: Text  274637 (CRIMES); Type “NCIS” at the top of the message; and include as much detail as possible to ensure your tip can effectively be investigated.  To send your ANONYMOUS Tip via the online, go to https://www.tipsubmit.com/webtipsNAV.aspx?AgencyID=840.

Suicide Prevention: Veterans in emotional crisis or their loved ones can call the free and confidential Veterans Crisis Line at 1-800-273-8255 (then press 1); or chat online at http://www.veteranscrisisline.net, or send a text message to 838255 to connect with a caring, qualified Veteran Affairs Responder who can deal with any immediate crisis.