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

Docket No. ND06-01137

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

ex-DCFR, USN
ND06-01137    

Current Discharge and Applicant’s Request

Application Received:  20060829	 Characterization Received:  UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason:  MISCONDUCT-PATTERN OF MISCONDUCT       Authority:  MILPERSMAN 3630600     

Applicant’s Request:	Characterization change to:  HONORABLE
			Narrative Reason change to: SECRETARIAL AUTHORITY
Applicant’s Issues:	1.  Propriety – Was not given more than 5 minutes to prepare for Captain’s Mast and was not given 			and attorney.
			2.  Propriety – Administrative Board was unusual in that it consisted of a great many members of his 			own ship.
			3.  Propriety – 1^st officer in chain had a vendetta against this sailor.
			4.  Equity – Post Service Conduct.

Decision

By a vote of 5-0 the Characterization shall remain UNDER OTHER THAN HONORABLE CONDITIONS.	
By a vote of 5-0 the Narrative Reason shall remain MISCONDUCT - PATTERN OF MISCONDUCT.

Date:  20070926			PERSONAL APPEARANCE HEARING		Location:  Washington D.C. 	

Discussion

Issue 1 (Propriety):  The Applicant contends that his discharge was improper based on his not receiving time to prepare for or the right to be represented at Capt’s Mast by an attorney.  JAGINST 5800.7 states, “Prior to the imposition of nonjudicial punishment, the commanding officer or officer in charge shall ensure that the individual concerned is fully advised of all applicable legal rights and that other required action is taken prior to the hearing....There is no right for an accused to consult with counsel prior to nonjudicial punishment....Failure to provide the opportunity for an accused to consult with counsel prior to nonjudicial punishment does not preclude the imposition of nonjudicial punishment.”  This issue is without merit.

Issue 2 (Propriety):  The Applicant contends that his administrative board was unusual in that it was made up of members of his command.  MILPERSMAN 1910-502 governs the composition of administrative boards states, “...at least three experienced commissioned, warrant, or noncommissioned officers to serve as voting members, senior member must be an O-4 or higher, majority must be commissioned and/or warrant officers, and enlisted members shall be in grade E-7 or higher and be senior to respondent...”  This issue is without merit.

Issue 3 (Equity): The Applicant asserts that that his division officer was on a personal vendetta to get him kicked out of the Navy.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his claim.  There is no evidence in the record, nor has the Applicant produced any evidence, to support his argument of being targeted.  However, even if the Applicant could document his claims this would neither amount to a justification nor to a defense for the Applicant’s own misconduct.  The record reflects his continued misconduct which demonstrated he was unfit for further service.  

Issue 4 (Equity):  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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 the civilian life subsequent to leaving the service.  Normally, to permit relief a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct 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, is considered.  The Applicant provided letters of recommendation, proof of employment, a transcript from Hennepin Technical College, certificates of additional training and recognition of his service as documentation of his post-service accomplishments.  The Board determined that the documentation provided by the Applicant did not mitigate the misconduct which resulted in the Applicant’s discharge and characterization of his service.  

 Summary of Service

Prior Service:
Inactive: USNR (DEP)	19890518 - 19890524       COG		Active:   NONE
Period of Service Under Review:
Date of Enlistment: 19890525		Years Contracted:  4;	Date of Discharge:  19920409     
Length of Service:     02 Yrs 10 Mths 15 Dys	Lost Time:  NONE
Education Level:  11	Age at Enlistment:  18	AFQT:  57	Highest Rank/Rate:  DCFA
Evaluation marks (# of occasions):	Performance:  3.0	Behavior: 3.0 OTA: 3.08 (5)        
Awards and Decorations (per DD 214):  Sea Service Deployment Ribbon, National Defense Medal, Southwest Asia Service Medal     

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

900107:		NJP for violation of UCMJ, Article 86 (absent from appointed place of duty).  Award:  Forfeiture of $362.00 		per month for 2 months.

UNDATED:	Retention Warning:  Advised of deficiency (In your NJP of 900107.), notified of corrective actions and 			assistance available, advised of consequences of further deficiencies, and issued discharge warning.

900314:		NJP for violation of UCMJ, Article 86 (unauthorized absence; 2 specs - specification 1 on 9002020; 			Specification 2 on 900225).  Award:  Correctional custody unit for 30 days.  

900316:		Applicant to Correctional Custody Unit, NAB Coronado, CA.

900408:		Applicant from Correctional Custody Unit, NAB Coronado, CA.

910516:		NJP for violation of UCMJ, Article 91 (insubordinate conduct toward a petty officer) at 0653 on 910510 and 		Article 92 (failure to obey order or regulation) at 0630 on 910510.  Award:  Restriction and extra duty for 15 		days.

910522:		Retention Warning:  Advised of deficiency (Violation of the UCMJ, Article 91 and Article 92), notified of 			corrective actions and assistance available, advised of consequences of further deficiencies, and issued a 			discharge warning.

920103:		NJP for violation of UCMJ, Article 92 (failure to obey order or regulation) at 0010 on 911214 by wrongfully 		consuming an alcoholic beverage in the HT Shop.  Award:  Restriction and extra duty for 45 days, reduction 		to E-1.  

920113:		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 pattern of misconduct and 			misconduct due to commission of a serious offense.

920114:		Applicant’s appeal of Nonjudicial Punishment.  

920121:		Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative 			Discharge Board.

920207:		Letter from Commander, Amphibious Squadron 7 denying Applicant’s appeal of Nonjudicial Punishment..

920207:		An Administrative Discharge Board, based upon preponderance of the evidence and by unanimous vote, 			found that the Applicant had committed misconduct due to pattern of misconduct, and the Applicant had not 		committed misconduct due to commission of a serious offense, that such misconduct warranted separation, 			and recommended discharge under other than honorable conditions.

920302:		Commanding Officer USS SCHENECTADY (LST-1185) recommended to Chief Bureau of Naval Personnel 		(BUPERS) the Applicant be discharged with a characterization of service as under other than honorable 			conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a 			serious offense.

920325:		BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct 			due to a pattern of misconduct.

Discharge Process
	
Date Notified:					920113
Reason for Discharge:	MISCONDUCT - A PATTERN OF MISCONDUCT
	MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE
Least Favorable Characterization:	UNDER OTHER THAN HONORABLE CONDITIONS

Date Applicant Responded to Notification:		920121
Rights Elected at Notification:
	Consult with Counsel			ELECTED
	Obtain Copies of Documents		ELECTED
	Submit Statement(s) (date)			ELECTED
	Administrative Board			ELECTED
	
Administrative Board Date:	     
              Findings, by preponderance of the evidence:	BY UNANIMOUS VOTE MISCONDUCT - A PATTERN OF MISCONDUCT SUPPORTED.
	BY UNANIMOUS VOTE MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE NOT SUPPORTED.
		BY UNANIMOUS VOTE SEPARATION WAS WARRANTED.
              Recommendation on Separation: 	BY UNANIMOUS VOTE SEPARATE      
              Recommendation on Characterization:	BY UNANIMOUS VOTE UNDER OTHER THAN HONORABLE CONDITIONS

Commanding Officer Recommendation (date):	UNDER OTHER THAN HONORABLE CONDITIONS (920302)
Separation Authority (date):	BUPERS (920325)
              Reason for discharge directed:	MISCONDUCT - A PATTERN OF MISCONDUCT
              Characterization directed:	UNDER OTHER THAN HONORABLE CONDITIONS
Date Applicant Discharged:	920409

Types of Documents Submitted by Applicant and Considered By Board

Related to Military Service:	Service and/or Medical Record:  ☐		Other Records:  ☐

Related to Post-Service Period:  	
	Employment:  		☒	Finances:  		☐	Education: 		☒
	Health/Medical Records:  	☐	Substance Abuse:		☐	Criminal Records:  	☒
	Family/Personal Status: 	☐	Community Service:  	☒	References:  		☒
	
Additional Statements From Applicant:  ☒	From Representative:  ☒  
Other Documentation (Describe) ☐      

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C, effective 15 Aug 91 until 04 Mar 93), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - A PATTERN OF MISCONDUCT.

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 91 and 92.

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 to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC  20301-4000.  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