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

Docket No. ND06-01082

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

Docket No. NDXX-00000

ex-AA, USN
ND06-01082

Current Discharge and Applicant’s Request:

Application Received:  				20060816     
Narrative Reason for Separation:			COMMISSION OF A SERIOUS OFFENSE
Character of Service:				UNDER OTHER THAN HONORABLE CONDITIONS
Discharge Authority:				MILPERSMAN 1910-142
Last Duty Assignment/Command at Discharge:	USS ABRAHAM LINCOLN CVN 72

Applicant’s Request:
	Narrative Reason change to:		NONE REQUESTED
	Characterization change to:		GENERAL (UNDER HONORABLE CONDITIONS)
	Review Requested:			DOCUMENTARY REVIEW
Representation:  					NONE DESIGNATED
	Issues (as summarized by NDRB):		1.  Re-enlist
						2.  Immature

Decision:

Date of Decision:					20070719
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 UNDER OTHER THAN HONORABLE CONDITIONS.	
By a vote of 5-0 the Reason for Discharge shall remain MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

Summary of Service:
	
Prior Service:
Inactive: USNR (DEP)				20000817-20000920 COG
Active:        		               		NONE
Period of Service Under Review:
Date of Enlistment:  				20000921     
Years Contracted:  				4     
Date of Discharge:				20020321
Length of Service:				01  Yrs 06  Mos 01Days

Does not exclude lost time, if any.

Time Lost During This Period:			79
Days Unauthorized Absence:			79     
Days Confinement:				NONE     

Education Level:  				12
Age at this Enlistment:  				18
AFQT:  						33
Highest Rate/Rank:				AN

Performance Evaluation Averages (number of marks):
Performance:					1.0 (1)
Behavior:					2.0 (1)
OTA:						1.67 (1)

Awards and Decorations (as listed on the DD Form 214):
NONE

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

20010619:	Applicant to unauthorized absence at 0700 on 20010619.

20010906:	Applicant from unauthorized absence at 0102 on 20010906 (79 days/apprehended).

20011101:	Summary Court-Martial.
	Charge I: Violation of the UCMJ, Article 86 (2 specifications).
	Specification 1: Did, from on or about 20010619, without authority, absent himself from USS ABRAHAM LINCOLN, until on or about 20010928.  Plea: Guilty.  Finding: Guilty.
	Specification 2: Did, from on or about 20010614, without authority, absent himself from USS ABRAHAM LINCOLN, until on or about 20010615.  Plea: Guilty.  Finding: NOT Guilty.
	Charge II: Violation of the UCMJ, Article 91:
	Specification: Disrespect to a Chief Petty Officer. Plea: Guilty.  Finding: Guilty.
	Charge III: Violation of the UCMJ, Article 134 (3 specifications): 
 	Specification 1: Disorderly on or about 20010326. Plea: Guilty.  Finding: Guilty.
 	Specification 2: Did on or about 20010326 orally communicate to Airman K_ A. C_, certain indecent language. Plea: Guilty.  Finding: Guilty.
	Specification 3: Did on or about 20010326 wrongfully communicate to Airman K_ A. C_, a threat to injure. Plea: Guilty.  Finding: Guilty.
	Sentence: Restriction and hard labor without confinement for 45 days, forfeiture of $500.00.
	CA action 20011101:  Sentence approved and ordered executed.

20020221:	NJP for violations of UCMJ:
	Article 91: Disrespect to a Chief Petty Officer.
	Article 117: Provoking speeches and gestures.
 	Article 128: Assault and battery.
	Award:  Forfeiture of $577 for 2 months, restriction and extra duty for 45 days.
	No indication of appeal in the record.

20020311:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

20020311:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

20020313:	Commanding Officer, USS Abraham Lincoln (CVN-73), recommended to Commander Carrier-Destroyer Group Three the Applicant’s discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

20020315:	Commander Carrier-Destroyer Group Three, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

Elements of Discharge:  [INVOLUNTARY]

Discharge Process:				Notification Procedure
Date Notified:					20020311
Reason for Discharge				COMMISSION OF A SERIOUS OFFENSE
Least Favorable Characterization:			UNDER OTHER THAN HONORABLE CONDITIONS
Date Applicant Responded to Notification:		20020311
Rights Elected at Notification:
Consult with Counsel			WAIVED
Administrative Board			WAIVED
Obtain Copies	  			WAIVED
Submit Statement(s) (date)			WAIVED       
GCMCA Review				NOT APPLICABLE

Recommendation of Commanding Officer (date):	UNDER OTHER THAN HONORABLE CONDITIONS  20020313
Discharge directed by (date):			COMCRUDESGRU 20020315
Narrative reason directed:				COMMISSION OF A SERIOUS OFFENSE
Characterization directed:				UNDER OTHER THAN HONORABLE CONDITIONS
Date Applicant Discharged:			20020321

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

        Total Number of Pages:				4
      
 Description of Other Documentation:
       	Letter from Ohio Job and Family Services

Discussion

Issue 1 (Re-enlist):  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 (Immaturity), Equity: The Applicant contends that his discharge was inequitable because his punishment was too harsh based on immaturity.  The Board reviews the propriety and equity of each Applicant’s discharge individually.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service.  Based upon the record, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy.  An other than honorable conditions characterization of service 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 a summary court martial for violations of UCMJ Article 86 (unauthorized absence, two specifications), violation of Article 91 (disrespect), violations of Article 134 (disorderly conduct, communicating a threat, and threat to injure).  Additionally,  the Applicant subsequently was found guilty of violating Article 91 (disrespect), Article 117 (provoking speech and gestures) and Article 128 (assault and battery) at Commanding Officer’s Non-Judicial Punishment.  Each violation of Articles 86 (in excess of 30 days and terminated by apprehension), 91, 128, and 134 (communicating a threat, indecent language) are considered the commission of a serious offense, the misconduct for which the Applicant was discharged.  Each serious offense violation carries a maximum penalty of a Bad Conduct Discharge and imprisonment.  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. 

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 31, dated 20 Feb 01, effective 25 Jan 01 until 21 Aug 02, 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