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

Docket No. NDXX-00000

ex-AR, USN
ND06-01121

Current Discharge and Applicant’s Request:

Application Received:  				20060823
Characterization of Service:			UNCHARACTERIZED
Narrative Reason for Separation:			COMMISSION OF A SERIOUS OFFENSE
Discharge Authority:				MILPERSMAN 3630600
Last Duty Assignment/Command at Discharge:	RTC GLAKES IL

Applicant’s Request:	
	Characterization change to:		GENERAL (UNDER HONORABLE CONDITIONS)
	Narrative Reason change to: 		NONE REQUESTED
	Review Requested:			DOCUMENTARY REVIEW
Representation:  					NONE DESIGNATED
Issues (as summarized by NDRB):			1.  RE Code/Reenlistment
						2.  Immaturity

Decision:

Date of Decision:					20070727
Location of Board:				Washington D.C.
Complete Service Record:				YES
Complete Medical Record:			NO
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 UNCHARACTERIZED.	
By a vote of 5-0 the Narrative Reason shall remain MISCONDUCT.

Summary of Service:

Prior Service:
Inactive: USNR (DEP)				19990917-19991004 COG
Active:   					NONE					     
Period of Service Under Review:
Date of Enlistment:  				19991005
Years Contracted:  				4
Date of Discharge:				19991217
Length of Service:				00 Yrs 02  Mos 13  Days
Time Lost During This Period:			NONE
Days Unauthorized Absence:			NONE
Days Confinement:				NONE

Education Level:  				GED
Age at this Enlistment:  				18
AFQT:  						71
Highest Rate/Rank:				AR

Performance Evaluation Averages (number of marks):
Performance:					NOT APPLICABLE
Behavior:					NOT APPLICABLE
OTA:						NOT APPLICABLE

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

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

19991208:	NJP for violation of UCMJ:
	Article 92: On or about 19991124, fail to obey a lawful order by wrongfully having inappropriate physical contact of a sexual nature with SR J_ T. R_, by holding hands and by allowing him to fondle her genitals.  
	Award:  Forfeiture of $207.00, restriction and extra duty for 14 days.
	No indication of appeal in the record.

19991210:	Applicant notified of her intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.

19991210:	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.

19991214:	Commanding Officer, Recruit Training Command, directed the Applicant’s discharge by reason of misconduct due to the commission of a serious offense with service characterization of uncharacterized (entry level separation).  Commanding Officer’s comments:  “The specific circumstances surrounding the misconduct warrants separation in this case, however, does not warrant an other than honorable characterization.  The servicemember has demonstrated a serious lack of core values in this incident.  She has no potential for further useful service.”

Elements of Discharge:  [INVOLUNTARY]

Date Notified:					19991210
Reason for Discharge				MISCONDUCT  due to:  COMMISSION OF A SERIOUS OFFENSE
				
Least Favorable Characterization:			GENERAL (UNDER HONORABLE CONDITIONS)
Date Applicant Responded to Notification:		19991210
Rights Elected at Notification:
Consult with Counsel			WAIVED
Administrative Board			WAIVED
Obtain Copies	  			ELECTED
Submit Statement(s) (date)			WAIVED       
GCMCA Review				NOT APPLICABLE
						
Recommendation of Commanding Officer (date):	NOT APPLICABLE/LOCAL SEPARATION
Separation Authority (date):	COMMANDING OFFICER, RTC (19991214)
Narrative reason directed:				COMMISSION OF A SERIOUS OFFENSE
Characterization directed:	ENTRY-LEVEL
Date Applicant Discharged:			19991217

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:				0     
	Criminal Records Checks:				0     
	Additional Statements from Applicant:		0     
        Other Documentation	 (Describe Below)		0     

        Total Number of Pages:				1     

Discussion

Issue 1 (RE code/reenlistment):  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 (equity) (immaturity):  The Applicant contends that her discharge was inequitable 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.  The Applicant’s service was marred by a nonjudicial punishment proceeding for a violation of UCMJ Article 92 (failure to obey a lawful order). Violations of UCMJ Article 92 may be punished with up to two years of confinement, this constitutes the “commission of a serious offense”, which forms the basis for discharge 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 the discharge proper and equitable.  Relief denied.

For the information of the Applicant, members notified of intended recommendation for discharge within the first 180 days of enlistment are eligible for an uncharacterized or entry-level separation characterization of service.  Unless there were unusual circumstances regarding a servicemember’s performance or conduct that would merit an honorable characterization, an uncharacterized discharge is generally considered the most appropriate characterization of a member’s service.  The Applicant's service record did not contain any unusual circumstances during her less than three months in the U. S. Navy to warrant a change of service characterization to honorable.  

The Applicant should also be aware that, with respect to nonservice-related administrative matters, i.e., VA benefits, educational pursuits, and especially civilian employment, an uncharacterized separation is considered the equivalent of an honorable discharge.

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence (from the Applicant’s Summary of Service, Service Record Entries, Medical Record Entries, Elements of Discharge, and evidence submitted by the Applicant) to rebut the presumption.

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 Dec 97 until 29 March 2000, 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.

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 violations of the UCMJ, Article 92, failure to obey a 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