ex-ENS, USN

Current Discharge and Applicant’s Request

Application Received: 20140826
Characterization of Service Received:  (per DD 214) UNDER HONORABLE CONDITIONS (GENERAL)
Narrative Reason for Discharge:  (per DD 214) MISCONDUCT (OTHER)
Authority for Discharge:  (corrected) SECNAVINST 1920.6C

Applicant’s Request:	Characterization change to:	HONORABLE
	Narrative Reason change to:	REQUESTED, BUT NOT SPECIFIED
	Reentry Code change to:  RE-1

Summary of Service
 
Prior Service:
Inactive: USNR (DEP)	20050927 - 20060614  ELS 	Active:	NONE
Inactive: USN (ROTC)	20060829 - 20100527  COG	

Period of Service Under Review:
Date of Appointment:  20100528	Age:  21
Years Contracted:  Indefinite
Date of Discharge:  20110920  	Highest Rank:  ENS
Length of Service:  01 Year(s)   03  Month(s)   23 Day(s)
Education Level:  16	AFQT:  88
Officer’s Fitness reports:  Available

Awards and Decorations (per DD 214):	Rifle MM Pistol MM NDSM GWOTSM

Periods of UA/CONF:  NONE

NJP:  1

- 20101210:	Article 107 (False official statement; O/A 20101201 onboard USS Taylor, SNM with intent to deceive did make a false statement to LT D_ concerning an personal relationship with a PO1.)
	Article 133 (Conduct unbecoming an officer and gentleman; O/A September 2010, SNM did engage in an unduly familiar relationship with a PO1.) 
	Article 134 (General article, Fraternization; O/A 20101010 to 20101023, SNM did knowingly fraternize with a PO1.)
	Awarded: RESTR Punitive Letter of Reprimand   Suspended:  NONE 

SCM:  NONE  	

SPCM:  NONE  	

CC:  NONE   	

Retention Warning Counseling:  NONE

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, 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 that she did not receive her full rights to due process during the course of events that led to her removal from the service.  

2.    The Applicant contends that the punishment was overly harsh in light of the events, and that she has demonstrated rehabilitation since the events occurred and now has the potential to serve honorably in the U.S. Navy. 

Decision

Date:  20150512	PERSONAL APPEARANCE HEARING	Location:  Washington D.C.	Representation:  NONE

By a vote of 5-0 the Characterization shall remain GENERAL (UNDER HONORABLE CONDITIONS).
By a vote of 5-0 the Narrative Reason shall remain MISCONDUCT (OTHER).
By a vote of 5-0 the Reentry Code shall remain N/A.

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 the discharge and the discharge process to ensure her 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 107 (False official statement), Article 133 (Conduct unbecoming an officer and gentleman), and Article 134 (General article, Fraternization).  Based on the offenses committed by the Applicant, her command administratively processed her for separation.   When notified of administrative separation processing using the notification procedure, the Applicant was notified of her rights and elected to submit a written statement.  Her discharge was reviewed and approved by The Assistant Secretary of the Navy (Manpower and Reserve Affairs). 

Issue 1:  (Decisional) (Propriety)  RELIEF NOT WARRANTED.  The Applicant contends that she did not receive her full rights to due process during the course of events that led to her removal from the service.  The Applicant provided documentation regarding her debt to the U.S. Government and records from the separation proceedings.  The Applicant contends that she was deprived of due process because she was not informed of the possible recoupment of debt for her college costs before she accepted NJP as required by Manual of the Judge Advocate General (JAGINST 5800.7E).  

Per JAGINST 5800.7E and the Manual for Courts Martial, personnel assigned to a vessel do not have the right to demand trial by court martial.  Prior to the NJP, the Applicant signed a rights form properly advising her of her rights as an accused attached to or embarked on a vessel.  She elected to make a personal appearance before the Commanding Officer and waived her right to submit written matters.  This document summarized her rights and that by personally appearing at NJP, she would have the right to be informed of the information against her, to be accompanied by a spokesman, to be permitted to examine evidence, to present matters in self-defense, and to have witnesses.   NJP was held on 10 December 2010, and the Applicant pled guilty to all charges.  She was notified of her right to appeal that same day and did not file an appeal.  She did provide a written response to her punitive letter of reprimand where she requested to be allowed to stay on active duty.  She was notified of administrative separation and recoupment of her debt procedures on 26 April 2011 and provided another written rebuttal statement and two letters of support.  The Assistant Secretary of the Navy (Manpower and Reserve Affairs approved the Commanding Officer’s separation request for an Under Honorable Conditions (General) characterization of discharge on 25 August 2011. 

The Applicant contends she was not given due process and was not properly notified of the debt recoupment prior to accepting NJP.  The Applicant did not have the right to request Court Martial.  The Applicant was notified of the debt recoupment as part of her administrative discharge notification, and she did not present any new evidence or additional mitigations in her subsequent rebuttal letter.  The Applicant bears the burden presenting substantial and credible evidence to support her issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that the government acted improperly.  Relief denied.   

Issue 2:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends that the punishment was overly harsh in light of the events, and that she has demonstrated rehabilitation since the events occurred and now has the potential to serve honorably in the U.S. Navy.  The Applicant provided college transcripts, financial documents, employment records, and three personal letters of reference.  The Applicant testified that she completed a Master’s degree and is progressing toward several additional degrees while working part time.  The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service.  Post-service accomplishments help demonstrate in-service misconduct was an aberration and not indicative of the member’s overall character.   

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.  While the Applicant may feel her youth and immaturity were the underlying causes of the misconduct, the record clearly reflects willful misconduct over a period of several weeks followed by providing a false official statement in response to the charges which demonstrates a severe lack of integrity and a significant departure from Navy core values especially for a Naval Officer.  The NDRB recognizes that serving in the military is challenging.  Most servicemembers, however, serve honorably and therefore earn their Honorable discharges.  In fairness to those Marines and Sailors who served honorably, Commanders and Separation Authorities are tasked to ensure that undeserving servicemembers receive no higher characterization than is due.  The NDRB found the characterization of the Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances.  Relief denied.
 
Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, and discharge process, the Board found the discharge was proper and equitable at the time of discharge.  Therefore, the awarded characterization of service shall remain GENERAL (UNDER HONORABLE CONDITIONS).  The narrative reason for separation shall remain MISCONDUCT (OTHER) and the reentry code shall remain N/A.

The Applicant is no longer eligible for additional reviews or hearings 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.

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