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

Docket No. ND06-01062

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

Docket No. NDXX-00000

ex-ETSN, USN
ND06-01062

Current Discharge and Applicant’s Request:

Application Received:  				20060814
Narrative Reason for Separation:			MISCONDUCT (SERIOUS OFFENSE)
Character of Service:				GENERAL (UNDER HONORABLE CONDITIONS)
Discharge Authority:				MILPERSMAN 1910-142
Last Duty Assignment/Command at Discharge:	uss san francisco

Applicant’s Request:
	Narrative Reason change to:		not applicable
	Characterization change to:		HONORABLE
	Review Requested:			DOCUMENTARY REVIEW
Representation:  					NONE DESIGNATED

Decision:

Date of Decision:					20070712
The Discharge shall remain:			GENERAL (UNDER HONORABLE CONDITIONS)
						MISCONDUCT (SERIOUS OFFENSE)
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:			NO
Complete Discharge Package:			YES

Applicant’s Issue as Summarized by the Board:

Should be honorable because of Service connected disability  

Summary of Service:

Prior Service:
Inactive: USNR (DEP)				20020531-20021104 ELS
Active:        		               		NONE
Period of Service Under Review:
Date of Enlistment:  				20021105     
Years Contracted:  				4;  12 MONTH EXTENSION      
Date of Discharge:				20050525
Length of Service:				02  Yrs  06  Mos  21  Days

Does not exclude lost time, if any.

Time Lost During This Period:			NONE
Days Unauthorized Absence:			NONE     
Days Confinement:				NONE     

Education Level:  				12
Age at this Enlistment:  				20
AFQT:  						63
Highest Rate/Rank:				ETSN

Performance Evaluation Averages (number of marks):
Performance:					2.5 (2)
Behavior:					2.5 (2) 
OTA:						2.50
Extracted from:  
Applicant’s Supporting Documents  ☐  Other:       ☐

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

20050106:	NJP for violation(s) of UCMJ:
	Article 86: (3 specifications) Unauthorized absence.
	Article 92: (3 specifications) Failure to obey order.
	Award:  Forfeiture of $250 for 2 months, oral reprimand, reduction to E-2 (suspended for 6 months).
	No indication of appeal in the record.

20050205:	Page 13/Administrative Remarks:  Determined Physically “NOT QUALIFIED” by reason of history of adjustment disorder with depressed mood and submarine environmental unadaptability.  The enlisted submarine designator (SU)/(SS) is hereby removed.  ETSN Lucas is entitled to wear the submarine breast insignia (if applicable).  He may reapply to the Naval Personnel Command (PERS 403) via bureau of Medicine and Surgery (BUMED 21) for restoration of the (SU)/ (SS) designator when he once again satisfies the physical requirements of the Manual of the Medicine Department for submarine duty.  Auth:  COMSUBPAC ltr 1306 Ser N1/033 of 14 Feb 05.

20050429:	NJP for violation(s) of UCMJ:
	Article 86: Unauthorized absence from appointed place of duty (Quarterdeck Watch).
	Award:  Restriction and extra duty for 20 days, reduction in rate (suspended for 6 months).
	No indication of appeal in the record.

Elements of Discharge:  [INVOLUNTARY]

Discharge Process:				Notification Procedure
Date Notified:					20050502
Reason for Discharge				MISCONDUCT
						COMMISSION OF A SERIOUS OFFENSE
Least Favorable Characterization:			GENERAL (UNDER HONORABLE CONDITIONS)
Record Supports Narrative Reason:			YES
Date Applicant Responded to Notification:		20050502
Rights Elected at Notification:
Consult with Counsel			WAIVED
Administrative Board			NOT APPLICABLE
Obtain Copies	  			WAIVED
Submit Statement(s) (date)			WAIVED       
GCMCA Review				WAIVED

Administrative Board Date:			NOT APPLICABLE
						
Recommendation of Commanding Officer (date):	N/A (LOCAL SEPARATION)  
Discharge directed by (date):			COMMANDER, SUBMARINE SQUADRON 15 20050504
Narrative reason directed:				COMMISSION OF A SERIOUS OFFENSE
Characterization directed:				GENERAL 
Date Applicant Discharged:			20050525

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:				2
	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)		4

        Total Number of Pages:				6

       Description of Other Documentation:
       	Rating Decision from Department of Veterans Affairs

Applicant’s Issue as Summarized by the Board:

Should be honorable because of Service connected disability  

The Applicant contends that his discharge should be characterized as Honorable because he has a service connected disability for which he is receiving benefits from the Department of Veterans Affairs.  When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  A general discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record.  The Applicant’s service was marred by two non-judicial punishment proceedings for violations of UCMJ Articles 86 (unauthorized absence) and 92 (failure to obey a lawful order).  Violations of UCMJ Article 92 are considered serious offenses for which a punitive discharge is authorized at courts 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 is not warranted.

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 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, Article 92 (failure to obey lawful order).

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