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

Docket No. ND06-01027

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

Docket No. NDXX-00000

ex-AN, USN
ND06-01027

Current Discharge and Applicant’s Request:

Application Received:  				20060801     
Narrative Reason for Separation:			MISCONDUCT
Character of Service:				GENERAL (UNDER HONORABLE CONDITIONS)
Discharge Authority:				MILPERSMAN 1910-142
Last Duty Assignment/Command at Discharge:	U.S. CEREMONIAL GUARD, WASHINGTION DC

Applicant’s Request:
	Narrative Reason change to:		nONE rEQUESTED
	Characterization change to:		HONORABLE
	Review Requested:			DOCUMENTARY REVIEW
Representation:  					NONE DESIGNATED

Decision:

Date of Decision:					20070621     
Location of Board:				Washington D.C.
Complete Service Record:				YES
Complete Medical Record:			YES
Complete Discharge Package:			YES

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

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.

.

Summary of Service:

Prior Service:
Inactive: USNR (DEP)				20010127-20010319 ELS
Active:        		               		NONE 
Period of Service Under Review:
Date of Enlistment:  				20010320
Years Contracted:  				4;  48 Months of additional extensions
Date of Discharge:				20040331
Length of Service:				03  Yrs  00  Mos  11  Days
Time Lost During This Period:			NONE
Days Unauthorized Absence:			NONE
Days Confinement:				NONE   

Education Level:  				12
Age at this Enlistment:  				18
AFQT:  						91
Highest Rate/Rank:				AN

Performance Evaluation Averages (number of marks):
Performance:					5.0 (1)
Behavior:					5.0 (1)
OTA:						4.43
Awards and Decorations (as listed on the DD Form 214):
NATIONAL DEFENSE SERVICE MEDAL

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

Undated:	Violation(s) of UCMJ:
	Article 107: False Official Statements.
	Article 112a: Wrongful use of controlled substance on or about 20030524, to wit: mushrooms.  

20031208:	Applicant signed a DDS Rights Warning/Non-Waiver Certificate admitting to False Official Statements and Wrongful use of Controlled Substances, to Special Agent C_ E. W_, DDS, PO, Arlington, Virginia.

Elements of Discharge:  [INVOLUNTARY]

Discharge Process:				Notification Procedure
Date Notified:					20040130
Reason for Discharge				MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE
Least Favorable Characterization:			GENERAL (UNDER HONORABLE CONDITIONS)
Date Applicant Responded to Notification:		20040130
Rights Elected at Notification:
Consult with Counsel			WAIVED
Administrative Board			WAIVED
Obtain Copies	  			ELECTED
Submit Statement(s)			WAIVED
GCMCA Review				WAIVED
Administrative Board Date:			NOT APPLICABLE
Recommendation of Commanding Officer (date):	N/A (LOCAL SEPARATION)       
Discharge directed by (date):		COMMANDING OFFICER, U.S. NAVY CEREMONIAL GUARD 20040318
Narrative reason directed:				IN LIEU OF CAPTAIN’S MAST
Characterization directed:				GENERAL (UNDER HONORABLE CONDITIONS) 
Date Applicant Discharged:			20040331 

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 Under Review:
	Service/Medical Record:				3
	Other Period of Service:				0
       Related to Post-Service Period:
	Community Service:				0
	Education:					8
	Employment:					0
	Health/Medical:					0
	Character Statements:				1
	Criminal Records Checks:				0
	Additional Statements from Applicant:		1
        Other Documentation	 (Describe Below)		4
       Description of Other Documentation:
       VA educational benefits status letter, VA educational benefits claim, MGIB Application, Preseparation Counseling Checklist 
        Total Number of Pages:				23

Applicant’s Issues as Summarized by the Board:
The Applicant submitted the following issues.  
1.  GI Bill.
2.  (Equity):  Discharge unfair – did not reflect the character of service also a single incident should not be used to characterize entire service period.

Issue 1:  This is either an issue which the board cannot form the basis of relief for the Applicant, or one that the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum regarding this Issue.  

Decisional Issues:
The Board considered the following issue(s):     

Issue 2:  The Applicant states his discharge was based on one isolated incident.  Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Naval service in order to maintain proper order and discipline.  The Applicant admitted his in-service use of illegal drugs, furthermore, the summary of service clearly documents the Applicant admitted to violations of UCMJ Article 107 (false official statement) and UCMJ Article 112a (wrongful use of controlled substance).  Each violation listed above constitutes the “commission of a serious offense”, the discharge basis in this case.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considers his discharge proper and equitable.  Relief denied.

The board noted a clerical error on separation authorities discharge direction.  “In lieu of Captain’s Mast” is not an authorized narrative reason for separation.  However, the Applicant was not prejudiced by this error because the DD-214 block 28 contains the authorized verbiage “MISCONDUCT”.  Based on the referenced MILPERSMAN 1910-142 “MISCONDUCT” is the appropriate entry.

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.

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 02 until 25 April 2005, Article 1910-142 [formerly 3630605], 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.

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