ex-CDR, USN

Current Discharge and Applicant’s Request

Application Received: 20140918
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:	

Summary of Service
Prior Service:
Inactive: 		Active:	(E)	19880804 - 19900930  
			USNR(O)	19901001 - 19980127  

Period of Service Under Review:
Date of Appointment:  19980128	Age:  
Years Contracted:  Indefinite
Date of Discharge:  20140331	Highest Rank:  CDR
Length of Service:  16 Year(s)     Month(s)   03 Day(s)
Education Level:  	AFQT:  NFIR
Officer’s Fitness reports:  Available

Awards and Decorations (per DD 214):	DMSM (4) (2) 

Periods of UA/CONF:  

NJP:  

- 20120531:	Article  (Failure to obey order or regulation) 3 specifications
	Article 133 (Conduct unbecoming an officer and gentleman) two specifications
	Article  (General article)
	Awarded:   Suspended:  

SCM:  	SPCM:  	CC:  	Retention Warning Counseling:  

Discharge Process

20120212:	Commander, Naval Surface Force Atlantic Inspector General (NAVINSGEN) received a complaint and commenced a preliminary inquiry into the allegations.

20120321:	NAVINGEN determined the allegations warranted a full investigation.

20120412:	NAVINGEN determined the allegations to be substantiated after conducting a full investigation and refers to Commander, Naval Surface Force Atlantic for action.

20120525:	Applicant elects to receive NJP and voluntarily, knowingly, and intelligently waives his right to consult with a lawyer.

20120531:	NJP -- Viol UCMJ Art. 92, 133, 134.
	Awarded – Written reprimand

20120605:	Applicant acknowledges Punitive Letter of Reprimand.  Applicant states his desire to appeal and submit a statement.

20120720:	Commander, U.S. Fleet Forces Command denied Applicant’s appeal of his Punitive Letter of Reprimand.

20121116:	 Naval Surface Force Atlantic forwarded Report of Nonjudicial Punishment t to Commander, Naval Personnel Command recommending Applicant  for retention.

20121119:	Applicant responded to Report of  by stating that he did not desire to submit a statement.

20130425:	Applicant detached for cause.

20130523:	Commander, Naval Personnel Command, notified Applicant of requirement to show cause.

20130605:	Applicant provides response to board of inquiry notification and acknowledged his rights.

20130606:	Applicant submits voluntary retirement request.

20130214:	Chief of Naval Personnel, recommended to the Assistant Secretary of the Navy (Manpower and Reserve Affairs) that Applicant’s retirement request be approved as an O4 with characterization of service as 

20130221:	Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved Applicant’s discharge by reason of Unacceptable Conduct, with characterization of service as  in the paygrade of O4.

20131022:	Applicant submits a rebuttal of retirement grade recommendation.

20140331:	Applicant discharged this date.

Administrative Corrections to the Applicant’s DD 214

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

	  “1998  01  28”
	  “16  02  03”
	Block 12d, Total Prior Active Service, should read: “09  05  24”
	  “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 880804 UNTIL 980127”

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 IV, Para 403m(7)(b), 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 his discharge characterization is inequitable because it was based on an isolated incident in over 24 years of service with no other adverse action.
2.	The Applicant contends his admission of guilt, request of formal investigation into his unacceptable conduct, and performance during the investigation and after his NJP until his retirement warrant consideration for an upgrade.

Decision

Date:  20150122		Location:  Washington D.C.	Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  UNACCEPTABLE CONDUCT.

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 92 (Failure to obey order or regulation), Article 133 (Conduct unbecoming an officer and gentleman), and Article 134 (General article).  Based on the offenses committed by the Applicant, he was notified of separation proceedings by the Commander, Navy Personnel Command.  The Applicant acknowledged his rights and submitted a voluntary retirement request in lieu of showing cause for retention before a board of inquiry.  The Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved the Applicant’s administrative separation on 21 February 2012 with an Under Honorable Conditions (General) discharge for Unacceptable Conduct with a reduction in retirement grade to O4.  The record shows the Applicant exercised his rights through the entire retirement process and that his case was fully afforded legal review.

:  (Decisional) ()  .  The Applicant contends his discharge characterization is inequitable because it was based on an isolated incident in over 24 years of service with no other adverse action.  The Applicant completed a period of enlistment and his first service obligation as a Naval Reserve Officer with an Honorable characterization of his service for each period of service; however, each period of enlistment and service obligation is an independent obligation, and characterization of service is determined for each specific period.  Characterization of service at discharge is the recognition of a service member’s performance and conduct during a period of service and is not necessarily dependent upon the narrative reason for separation.  An Under Honorable Conditions (General) 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.  

The Applicant was allowed to retire after being found guilty of misconduct at his NJP.  The NDRB requested and was able to review the Applicant’s retirement package.  The NDRB noted regularity in governmental affairs in the Applicant’s retirement package in that the Secretary of the Navy and Staff Judge Advocate review of his retirement package ensured that the Applicant was afforded all of his administrative rights pursuant to the retirement process.  The Applicant did not submit any documentation to rebut any presumption of regularity in governmental affairs by the NDRB.  Relief denied.

:  (Decisional) ()  .  The Applicant contends his admission of guilt, request of formal investigation into his unacceptable conduct, and performance during the investigation and after his NJP until his retirement warrant consideration for an upgrade.  The Applicant implies he was treated unfairly by the Secretary of the Navy in determining this discharge characterization upon the acceptance of his retirement.  The NDRB requested and was able to review the Applicant’s complete retirement package.  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 he was treated unfairly in the discharge process or in the determination of the character of his service.  The Applicant’s service included one nonjudicial punishment as an officer for violations of UCMJ Articles 92, 133, and 134.  Violations of UCMJ Article 92 and 134 are considered serious offenses for which a punitive discharge is authorized.  Violations of UCMJ Article 133 are also considered serious offenses for which dismissal is authorized.  The NDRB determined the Applicant’s conduct, which forms the primary basis for determining the character of his service, reflected a significant departure from the conduct expected of a servicemember and that an upgrade was not warranted.  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 remain UNDER HONORABLE CONDITIONS (GENERAL) and the narrative reason for separation shall remain UNACCEPTABLE CONDUCT.

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