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

Docket No. ND06-01060

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

Docket No. NDXX-00000

ex-HA, USN
ND06-01060

Current Discharge and Applicant’s Request:

Application Received:  				20060808
Narrative Reason for Separation:			MISCONDUCT DUE TO
						COMMISSION OF A SERIOUS OFFENSE

The Applicant’s DD214 states that the Narrative Reason for Separation is Pattern of Misconduct although the Separation Authority directed Commission of a Serious Offense.

Character of Service:				UNDER OTHER THAN HONORABLE CONDITIONS
Discharge Authority:				MILPERSMAN 3630600
Last Duty Assignment/Command at Discharge:	1^ST MARDIV FMF CAMP PENDLETON CA

Applicant’s Request:
	Narrative Reason change to:		bEST INTEREST OF THE SERVICE
	Characterization change to:		HONORABLE
	Review Requested:			DOCUMENTARY REVIEW
Representation:  					NONE DESIGNATED

Decision:

Date of Decision:					20070709
The Discharge shall change to:			MISCONDUCT DUE TO
						PATTERN OF MISCONDUCT
						UNDER OTHER THAN HONORABLE CONDITIONS
						
Regarding propriety, the Board found the discharge:	PROPER
Regarding equity, the Board found the discharge:	EQUITABLE
Vote (characterization/reason)			UNANIMOUS/ UNANIMOUS
Location of Board:				Washington D.C.
Complete Service Record:				YES
Complete Medical Record:			YES
Complete Discharge Package:			YES

Applicant’s Issues as Summarized by the Board:

1.  Equity --  Personal Problem
2.  Equity --  Post service conduct

Summary of Service:

Prior Service:
Inactive: USNR (DEP)				19900727 - 19900617 COG
Active:   NONE
Period of Service Under Review:
Date of Enlistment:  				19910618
Years Contracted:  				4;  NO EXTENSION 
Date of Discharge:				19950411
Length of Service:				03  Yrs  09  Mos  24  Days

Does not exclude lost time, if any.

Time Lost During This Period:			
Days Unauthorized Absence:			14
Days Confinement:

Education Level:  				12
Age at this Enlistment:  				18
AFQT:  						43
Highest Rate/Rank:				HN

Performance Evaluation Averages (number of marks):
Performance:					3.1 (4)
Behavior:					3.0 (4)
OTA:						3.20
Extracted from:  
Applicant’s Supporting Documents  ☐  Other:       ☐

Awards and Decorations (as listed on the DD Form 214):
NATIONAL DEFENSE SERVICE MEDAL/SEA SERVICE DEPLOYMENT RIBBON/NAVY UNIT COMMENDATION/NAVY FLEET MARINE FORCE RIBBON/NAVY ACHIEVEMENT MEDAL/JOINT MERITORIOUS UNIT AWARD/SOUTHWEST ASIA SERVICE MEDAL WITH BRONZE STAR

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

19911030:	NJP for violation(s) of UCMJ:
	Article 121:  Commit larceny.  No further information found in service record.
	No indication of appeal in the record.  [Extracted from Commanding Officer’s letter dated 19950316.]

19911030:	Retention Warning:  Advised of deficiency (Article 121 of the UCMJ:  Larceny in that SNM stole the personal property of an individual.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

19921023:	NJP for violation(s) of UCMJ:
	Article 91:  Insubordinate conduct towards a noncommissioned officer.
	Article 128:  Assault.
	Article 134:  Drunk and disorderly.
	Award:  Forfeiture of $392 for 2 months, restriction and extra duty for 45 days.  Restriction suspended for 6 months.
	No indication of appeal in the record.

19921023:	Retention Warning:  Advised of deficiency (You have failed to adhere to the rules of the Uniform Code of Military Justice pertaining to your misconduct due to violation of UCMJ Article 91:  Insubordinate conduct towards a noncommissioned officer, Article 128:  Assault and Article 134:  Drunk and disorderly.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

The service record entry lists Article 118, but indicates the charge was Assault which is Article 128.

19930401:	Applicant reinstated to HA as a result of approved BCNR petition.

19930701:	NJP for violation(s) of UCMJ:
	Article 86:  UA from 1300, 19930608 to 0645, 19930621 (11 days).
	Award:  Forfeiture of $221 for 1 month, restriction and extra duty for 14 days.
	No indication of appeal in the record.

19931115:	Retention Warning:  Advised of deficiency (The recommendation to administratively separate you from the United States Naval Service was put on hold by the Battalion Commander,), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

19931217:	Applicant to unauthorized absence at 0900.

19931220:	Applicant from unauthorized absence at 0945 (2 days/surrendered)

19940110:	NJP for violation(s) of UCMJ:
	Article 86 (2 specifications)
	Specification 1:  On or about 0700, 19931217 absent himself from appointed place of duty and did remain so absent until 0900, 19931217.
	Specification 2:  On or about 0900, 19931217 absent himself from place of duty and remain so absent until 0945, 19931220 (3 days/surrendered).
	Award:  Forfeiture of $213 for 1 month, restriction for 14 days.  Forfeiture, restriction for 7 days suspended for 60 days.
	No indication of appeal in the record.

19940810:	Retention Warning:  Advised of deficiency (Operating a motor vehicle while intoxicated (BAC .015) in the San Juan Capistrano area.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

19950224:	NJP for violation(s) of UCMJ:
	Article 86:  On or about 0700, 19950105 without authority, absent himself from his place of duty until on or about 1320, 19950120 (14 days).
	Article 121:  On or about 19950121, steal one can of Copenhagen Snuff of a value of $2.35.
	Award:  Forfeiture of $466 for 2 month(s), restriction and extra duty for 45 days, reduction to E-2.  Forfeiture suspended for 6 months.
	No indication of appeal in the record.

Elements of Discharge:  [INVOLUNTARY]

Discharge Process:				Administrative Board Procedure
Date Notified:					19950315
Reason for Discharge				NUMEROUS NONJUDICIAL PUNISHMENTS			

The Reason for Discharge listed on the Applicant’s notification is not a listed reason for discharge under MILPERSMAN Chapter 36 although the description is one normally used as a factual basis for discharge on the basis of Pattern of Misconduct.

Least Favorable Characterization:			UNDER OTHER THAN HONORABLE CONDITIONS
Record Supports Narrative Reason:			NO

The Commanding General attempted to direct the discharge although he was not the Separation Authority per MILPERSMAN.  The Applicant was in the Marine Chain of Command operationally so the Commanding General may have believed in error that he had discharge authority for the Applicant.  This error was not prejudicial because the Separation Authority, the Chief of Navy Personnel directed the discharge based on the General Court Martial Authority’s recommendation.

Date Applicant Responded to Notification:		19950323
Rights Elected at Notification:
Consult with Counsel			ELECTED
Administrative Board			WAIVED
Obtain Copies	  			ELECTED
Submit Statement(s) (date)			WAIVED       
GCMCA Review				NOT APPLICABLE
						
Recommendation of Commanding Officer (date):	UOTHC  19950316
Discharge directed by (date):	COMMANDING GENERAL, 1^ST MARINE DIVISION (REIN) 19950404
Narrative reason directed:				NONE LISTED

Characterization directed:				UNDER OTHER THAN HONORABLE CONDITIONS 
Discharge directed by (date):			BUPERS 19950502
Narrative reason directed:				COMMISSION OF A SERIOUS OFFENSE
Characterization directed:				UNDER OTHER THAN HONORABLE CONDITIONS 
Date Applicant Discharged:			19950411

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:				7
	Other Period of Service:				0
       Related to Post-Service Period:
	Community Service:				0
	Education:					6
	Employment:					4
	Health/Medical:					0
	Character Statements:				1
	Criminal Records Checks:				0
	Additional Statements from Applicant:		2
        Other Documentation	 (Describe Below)		0

        Total Number of Pages:				20

       Description of Other Documentation:
       	     

Applicant’s Issues as Summarized by the Board:

1.  Equity --  Personal Problem
2.  Equity --  Post service conduct

The Applicant contends his disciplinary problems were the result of stress caused by family problems (divorce, ill father, and death of grandfather).  The NDRB recognizes that serving in the U.S. Navy is challenging.  Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country.  It must be noted that most members of the Navy serve honorably and therefore earn their honorable discharges.  In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due.  While the NDRB respects the fact that the Applicant had unfortunate personal challenges, his service is equitably characterized as being performed under other than honorable conditions.  Relief denied.

The Applicant provides evidence of post service conduct in support of his request for upgrade.  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 the service.  The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was not sufficient to mitigate the conduct, which precipitated the discharge.  Relief denied.

The NDRB did note administrative error in the Applicant’s separation processing.  The Applicant’s misconduct was sufficient to support discharge on the basis of Misconduct due to the Commission of a Serious Offense and Misconduct due to a Pattern of Misconduct.  The record indicates that the Applicant’s notice included a factual basis for his separation but did not spell out the Narrative Reasons for Processing that usually correspond to the factual basis.  Nevertheless, the NDRB is convinced that this procedural error was not prejudicial to the Applicant with respect to separation for Misconduct.  However, the Applicant may have been prejudiced with respect to the Narrative reason.  Because the factual basis was provided and the Applicant consulted with counsel, the Board felt that the Applicant was on notice that he faced separation at least on the basis of Misconduct due to Pattern of Misconduct.  The Board was not convinced he was put on notice for discharge on the basis of the Commission of a Serious Offense.  Therefore the Board afforded partial relief to the Applicant voting to change his Narrative Reason to Misconduct due to a Pattern of Misconduct.  The board voted not to change the character of the Applicant’s discharge.  The Applicant’s discharge is changed to MISCONDUCT/UNDER OTHER THAN HONORABLE CONDITIONS, authority: MILPERSMAN 3630600, Separation Code “KKA.”

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), Change 9, effective 22 July 1994 until 02 October 1996, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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 121 (larceny) and 128 (Assault).

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