Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: joyce.meeks
Company: NCPB

Docket No. ND06-00990

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

ex-AA, USN
ND06-00990

Current Discharge and Applicant’s Request:

Application Received:  				20060718     
Narrative Reason for Separation:			MISCONDUCT (SERIOUS OFFENSE)
Character of Service:				
Discharge Authority:				MILPERSMAN 1910-142
Last Duty Assignment/Command at Discharge:	USS GEORGE WASHINGTON (CVN-73)

Applicant’s Request:
	Narrative Reason change to: 		NONE REQUESTED
	Characterization change to:		
	Review Requested:			
Representation:  					 DESIGNATED

Decision:

Date of Decision:					20070606
Location of Board:				Washington D.C.
Complete Service Record:				
Complete Medical Record:			
Complete Discharge Package:			

Regarding propriety, the Board found the discharge:	
Regarding equity, the Board found the discharge:	

By a vote of  the Characterization shall  .	
By a vote of  the Narrative Reason shall   (SERIOUS OFFENSE).

Summary of Service:

Prior Service:
Inactive:	 USNR (DEP)				20010928 – 20020730	ELS 
	 USNR (DEP)				20020919 - 20021105	COG
Active:        		               		NONE     

Period of Service Under Review:
Date of Enlistment:  				20021106     
Years Contracted:  				;        
Date of Discharge:				20050930
Length of Service:				02  Yrs  09  Mos  25  Days  (does not exclude lost time, if any)
Time Lost During This Period:			65       
						Unable to determine DAYS actual CONFINEMENT        
			
Education Level:  				
Age at this Enlistment:  				
AFQT:  						31
Highest Rate/Rank:				AN

Performance Evaluation Averages (number of marks):
Performance/Behavior/OTA:			2.0 (2)  1.5 (2)  2.63

Awards and Decorations (as listed on the DD Form 214):  NATIONAL DEFENSE SERVICE MEDAL, GLOBAL WAR OF TERRORISM SERVICE MEDAL, GLOBAL WAR OF TERRORISM EXPEDITIONARY MEDAL, SEA SERVICE DEPLOYMENT RIBBON

Service Record Entries Related to Characterization of Service or Narrative Reason for Separation

20031018:	Summary Court-Martial.
	Charge: Violation of the UCMJ, Article 86.
	Specification: Unauthorized absence from on or about 20030707 to on or about 20030904.
	Finding: To Charge and the specification thereunder, guilty.
	Sentence: Confinement for 20 days, forfeiture of $300.00, reduction to E-1.
	CA action 20031023:  Sentence approved and ordered executed.

20040906:	Applicant to unauthorized absence at 0715 on 20040906.

20040913:	Applicant from unauthorized absence at 0750 on 20040913 (7 days/surrendered).

20050927:	NJP for violation(s) of UCMJ:
	Article 134 (2 Specifications): Adultery by having sexual intercourse with a woman not his wife and indecent acts by video taping sexual intercourse with a female service member without her knowledge or consent.
	Award:  Forfeiture of $500 for 2 months, restriction and extra duty for 45 days (15 days restriction suspended for 6 months), reduction to E-2.
   	No indication of appeal in the record.

Medical Record Entries Related to Characterization of Service or Narrative Reason for Separation

None.

Elements of Discharge:  [INVOLUNTARY]

Discharge Process:				ADMINISTRATIVE BOARD PROCEDURE
Date Notified:					20050927
Reason(s):					MISCONDUCT - 
Least Favorable Characterization:			
Record Supports Narrative Reason:			

Date Applicant Responded to Notification:		20050927
Rights Elected at Notification:
Consult with Counsel			
Administrative Board			
Obtain Copies	  			
Submit Statement(s)			 (Statement not dated)

Administrative Board Date:			Not applicable
Commanding Officer Recommendation (date):	UNDER OTHER THAN HONORABLE CONDITIONS (20050927) 
Discharge directed by (date):			COMNAVAIRLANT NORFOLK VA (20050930)
Narrative reason directed:				MISCONDUCT (SERIOUS OFFENSE)
Characterization of directed:			 
Date Applicant Discharged:			20050930 

Additional Information Considered by Board

Type of documentation submitted by the Applicant and considered by the Board
       
       	Document Type					#Pages
       Related to Period of Service:
	Service/Medical Record:				1
	Other Period of Service:				0
       Related to Post-Service Period:
	Community Service:				0
	Education:					0
	Employment:					0
	Health/Medical:					0
	Character Statements:				0
	Criminal Records Checks:				0
	Additional Statements from Applicant:		0
        Other Documentation	 (Describe Below)		0

        Total Number of Pages:				1

       Description of Other Documentation:  None.
            

Applicant’s Issues as Summarized by the Board:

1.  Misconduct one off-duty incident not warranting discharge.
2.  Other servicemember involved not charged with offense.
3.  Discharge based on Navy’s “fiscal year discharge requirements.”

Decisional Issues:

Issue 1 ().  Certain serious offenses warrant separation from the Naval service in order to maintain proper order and discipline.  An under other than honorable conditions discharge is warranted when a member’s conduct involves one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service.  The Applicant’s service was marred by a summary court-martial for violation of the UCMJ, Article 86 and nonjudicial punishment for violations of Article 134 of the UCMJ.  The Applicant’s violations of Articles 86 and 134 are considered serious offenses for which a punitive discharge is authorized if adjudged at a special or general court-martial.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.  Relief denied.

Issue 2 ().  The Applicant asserts that his discharge was inequitable because another servicemember was not punished for similar misconduct.  The Board 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.  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.  A preponderance of the evidence reviewed supports the conclusion that the Applicant committed a serious offense, that separation from the Naval service was appropriate, and that an other than honorable discharge was warranted.  As such, relief is denied.

Issue 3 (Propriety). The Applicant provides no evidence to support his claim of being discharged due to “fiscal year discharge requirements.”  The record clearly documents his misconduct.  To permit relief, an impropriety or inequity must be found to have existed during the period of enlistment under review.  There was nothing in the records, nor did the Applicant provide any documentation, to indicate there existed error of fact, law, procedure, or discretion at the time of discharge.  There was no rights violation and no basis for relief.  Relief denied.  

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, Medical Record Entries, Elements of Discharge and evidence submitted by the Applicant, the Board found the Applicant’s discharge proper and equitable.

Minority Opinion

None.

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 April 2005 until Present, Article 1910-142, SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

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.

C.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Articles 86, Absence without leave (for more than 30 days); 134, Adultery; and 134, Indecent acts with another.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe that 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.  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:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the 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.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  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 Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’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 Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board 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 subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, 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 “PTSD.”  Only the Board for Correction of Naval Records can grant this type of narrative reason change.  

Automatic Upgrades -  There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge 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.  Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  

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 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.  

Board Membership:  The names and votes of the members of the 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