ex-LTJG, USN

Current Discharge and Applicant’s Request

Application Received: 20150720
Characterization of Service Received:  (per DD 214) UNDER HONORABLE CONDITIONS (GENERAL)
Narrative Reason for Discharge:  (per DD 214) MISCONDUCT (OTHER)
Reenlistment Code:  N/A
Authority for Discharge:  (per DD 214) SECNAVINST 1920.6C

Applicant’s Request:	Characterization change to:	HONORABLE
	Narrative Reason change to:	SECRETARIAL AUTHORITY

Summary of Service

Prior Service:
Active:	USNA 20030701 – 20070524 COG

Period of Service Under Review:

Date of Appointment:  20070525	Age at Enlistment:  22
Years Contracted:  Indefinite
Date of Discharge:  20110430	Highest Rank/Rate:  LTJG
Length of Service:  03 Year(s)   11  Month(s)   06 Day(s)
Education Level:  16	
Officer’s Fitness reports:  Available

Awards and Decorations (per DD 214):	NDSM GWOTSM NMCAM OVSM SWO 

Periods of UA/CONF:  NONE

NJP:  1

- 20100702:	Article 92 (Failure to obey order or regulation; O/A June to August 2009, SNM failed to obey the OPNAVINST 5370.2C by wrongfully engaging in an unduly familiar personal relationship with her CO.)
	Awarded: WRITTEN REPRIMAND Suspended:  NONE 

SCM:  NONE	SPCM:  NONE	CC:  NONE	Retention Warning Counseling:  NONE

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)(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 she was not apprised of all her legal rights in accordance with JAGMAN 0109, that she was not afforded the opportunity to consult with a defense counsel at the base, and that she was not notified of the requirement to repay the cost of advanced education before she elected NJP.
2.	The Applicant contends that the NJP was imposed as retaliation for her voluntary disclosure of sexual harassment by her Commanding Officer per SECNAVINST 5300.26D and that the NJP was inequitable because of the disparity in rank, power, and experience.  
3. 	The Applicant contends the request for resignation was not processed according to applicable regulations and either should have been denied or should have an Honorable characterization of discharge.
4.  	The Applicant contends that the discharge characterization was inequitable because policies have changed regarding sexual harassment, the Applicant’s fitness reports indicate superlative performance, and her post-service documentation indicates her good character.  

Decision

Date:  20160112	DOCUMENTARY REVIEW	Location:  Washington D.C.	Representation:  Civilian Counsel

By a vote of 4-1 the Characterization shall remain UNDER HONORABLE CONDITIONS (GENERAL).
By a vote of 4-1 the Narrative Reason shall remain MISCONDUCT (OTHER).

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 her 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 violation of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation).  Based on the offenses committed by the Applicant, Navy Personnel Command (PERS-834) initiated administrative proceedings requiring her to show cause for retention.  In response, the Applicant acknowledged her rights and submitted a qualified resignation request.  The NDRB requested and received the official documentation of the Applicant’s official separation paperwork from Navy Personnel Command (PERS-834 Officer Conduct and Separations).  The Applicant may petition Navy Personnel Command (PERS-834@navy.mil) for a complete copy of her separation paperwork.

Issue 1:  (Decisional) (Propriety)  RELIEF NOT WARRANTED.   The Applicant contends that she was not apprised of all her legal rights in accordance with JAGMAN 0109, that she was not afforded the opportunity to consult with a defense counsel at the base, and that she was not notified of the requirement to repay the cost of advanced education before she elected NJP.   Per the report completed by the assigned Investigating Officer dated 18 February 2010, the Applicant was initially interviewed by telephone on 20 January 2010 and was not read her rights because at the time she was not suspected of any UCMJ offense.  However as the investigation continued, she was interviewed again on 08 February 2010,  and the investigator states that he described the charges that she was suspected of committing, and he explained her rights to her during that interview.   On 18 February 2010, the Applicant provided a Voluntary Sworn Statement and completed a written Suspect’s Rights Acknowledgement Statement which was enclosure 10 of the Investigating Officer’s report where she was provided her rights and expressly waived her rights including the right to remain silent and consult with a lawyer.  The Applicant signed the typed sworn statement and initialed each paragraph.  In the sworn statement, she confirms that during the interview on 08 February she was read her rights and provided information on possible charges before answering questions.  

Additionally on the Report and Disposition of Offenses Report dated 02 July 2010 that was used for NJP, the Applicant signed a statement acknowledging the charges against her and that she did not have to answer questions or make a statement regarding the offenses of which she was accused.  The statement was signed by the Applicant and witnessed by another officer.  At NJP, the Applicant was awarded a punitive letter of reprimand.  The letter of reprimand referenced the Applicant’s plea of guilty and testimony provided during the NJP.  The letter also documents her notification of the right to appeal the NJP findings.  In a letter dated 02 July 2010, she elected not to appeal the NJP.  The record clearly documents that the Applicant waived her right to defense counsel and there is no indication that she was prevented from seeking legal guidance at any time as the ship was in port and the Applicant was not confined or restricted in her movements.  Finally, the Applicant contends she was not properly notified of the requirement for debt recoupment prior to NJP as required by JAGMAN 5800.7E section 0109 a (2).  Per JAGMAN 5800.7E and the Manual for Courts Martial, personnel assigned to a vessel do not have the right to demand trial by court martial.   JAGMAN 5800.7E section 0109 a (2) applies to pre-NJP advice concerning the decision to demand trial by court martial which was not applicable since the Applicant could not elect trial by court martial since she was assigned to a vessel.  After a thorough review of the records, the NDRB did not find any credible evidence of improprieties with the discharge process.  

Issue 2:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.   The Applicant contends that the NJP was imposed as retaliation for her voluntary disclosure of sexual harassment by her Commanding Officer per SECNAVINST 5300.26D and that the NJP was inequitable because of the disparity in rank, power, and experience.  The Department of the Navy Policy on Sexual Harassment, SECNAVINST 5300.26D, cites that if the person demonstrating the objectionable behavior is a direct superior in the chain of command or the chain of command condones the conduct or ignores a report, individuals who have been subjected to or who observe objectionable behavior are encouraged to promptly communicate the incident through other available means.  The Navy Fraternization Policy, OPNAVINST 5370.2C current at the time of discharge and OPNAVINST 5370.2D promulgated on 06 January 2016, states the senior party is expected to control and preclude the development of inappropriate relationships but the policy is applicable to both members and both are accountable for their own conduct.   All Navy personnel are provided extensive training on both policies during accession training and annually as well as orientation on the various avenues to reporting incidents internal and external to a command.  Neither the official record nor the application submitted to the NDRB indicates that the Applicant brought forward any charges of sexual harassment or reported the misconduct by any means.  The punitive letter of reprimand resulting from the NJP cites that she did not seek outside assistance to resolve the situation.  The Commanding Officer, USS VICKSBURG (CG 69), and the Commander, Strike Group EIGHT, both provided positive endorsements for the Applicant’s retention and promotion while praising her performance and requesting Navy Personnel Command not to require her to show cause for retention in the Naval service.  The NDRB did not find any credible evidence to support that the NJP was imposed as retaliation or reprisal or that the resulting punishment was disproportionate considering that the misconduct occurred over many months and the Applicant continued to contact the other party even after she had transferred to a new command.  

Issue 3:  (Decisional) (Propriety)  RELIEF NOT WARRANTED.  The Applicant contends the request for resignation was not processed according to applicable regulations and either should have been denied or should have an Honorable characterization of discharge.  The Applicant provides a copy of a letter dated 27 July 2010 (Exhibit B3) submitted to the Secretary of the Navy requesting an unqualified resignation from active duty and denies that she submitted a qualified resignation as referenced in the 07 March 2011 letter from Navy Personnel Command to the Secretary of the Navy (Exhibit B1 and B2).  The official record received from PERS-834 contains the Notification of Administrative Separation Processing dated 12 January 2011 in response to the Commanding Officer’s Report of Non-judicial Punishment dated 07 July 2010.  The notice required the Applicant to show cause for retention and states that the least favorable discharge that may be recommended is Other Than Honorable.  The letter provided the Applicant her rights and authorized her to submit a qualified resignation request for a General (Under Honorable Conditions) discharge in lieu of the administrative separation by Board of Inquiry (BOI).  The Applicant signed the acknowledgement of rights on 25 January 2011 and elected to tender a qualified resignation and waive her right to a BOI.   The Applicant also acknowledged that she may be required to repay any indebtedness to the government.   Navy Personnel Command would have held the Applicant’s unqualified resignation request in abeyance pending resolution of legal proceedings and the resulting notification of separation processing via BOI.  The subsequent request by the Applicant for a qualified resignation in response to the Notification of Administrative Separation Processing would have superseded the unqualified resignation request that was previously submitted.  The Commander, Navy Personnel Command, approved the qualified resignation on 07 March 2011.  

Issue 4:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends that the discharge characterization was inequitable because policies have changed regarding sexual harassment, the Applicant’s fitness reports indicate superlative performance, and her post-service documentation indicates her good character.  The Applicant provided documentation of her marriage and children, letters of reference, and evidence of good credit.  The Navy instructions governing fraternization and sexual harassment and associated programs were solidly established at the time of the misconduct in 2010.  The current Department of the Navy Policy on Sexual Harassment, SECNAVINST 5300.26D, was promulgated in January 2006 and continues in effect.  Officer misconduct is adjudicated at the highest level by Navy Personnel Command (PERS-834 Officer 
Conduct and Separations) to ensure fairness, compliance with procedures, and mitigate command bias.   The Applicant could have appeared before the BOI and presented her case for retention and provided any mitigation that she felt was relevant.  Instead she elected to tender a qualified resignation and waive her right to a BOI.  The Applicant’s fitness reports and post-service documentation demonstrate that the Applicant had potential for honorable service;  however, her misconduct was repeated over a period of months.  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.   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.

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 UNDER HONORABLE CONDITIONS (GENERAL) and the narrative reason for separation shall remain MISCONDUCT (OTHER).  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of her 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, 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-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