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

Docket No. ND06-01186

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

Docket No. NDXX-00000

ex-ASAR, USN
ND06-01186

Current Discharge and Applicant’s Request:

Application Received:  				20060907
Characterization of Service:			OTHER THAN HONORABLE
Narrative Reason for Separation:			MISCONDUCT
Discharge Authority:				MILPERSMAN 1910-142
Last Duty Assignment/Command at Discharge:	NSGA SUGAR GROVE, WV

Applicant’s Request:	
	Characterization change to:		GENERAL (UNDER HONORABLE CONDITIONS)
	Narrative Reason change to: 		NONE REQUESTED
	Review Requested:			DOCUMENTARY REVIEW
Representation:    				NONE DESIGNATED

Applicant’s issues:
1.  Veteran’s Administration benefits.
2.  Reenlistment Opportunities
3.  Applicant contends he was not given the chance to defend the charges against him.

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.

Date of Decision:					20070816
Location of Board:				Washington D.C.
Complete Service Record:				NO
Complete Medical Record:			YES
Complete Discharge Package:			NO

Regarding propriety, the Board found the discharge:	PROPER
Regarding equity, the Board found the discharge:	EQUITABLE

Issue(s) 1 and 2:  The Board determined that these Issues are not issues which can form the basis for relief for the Applicant or that the Board did not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum regarding these Issues.  

Issue 3 (Propriety/Equity).  The Applicant implies that he was not given a chance to defend the charges against him.  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 issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was not given a chance to defend the charges against him.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.    

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.

Summary of Service:

Prior Service:
Inactive: USNR (DEP)				19960110 - 19960122  COG
Active:   USN					19960123 - 20000922  HON

Period of Service Under Review:
Date of Enlistment:  				20000923
Years Contracted:  				3;  NO EXTENSION      
Date of Discharge:				20040205
Length of Service
	Active:					03  Yrs  04  Mths  13  Dys  (does not exclude lost time)

Time Lost During This Period:			NONE  	
Days UA:                                                                         None 	
Days Confinement:                                                         None

Education Level:  				12
Age at this Enlistment:  				25
AFQT:  						41
Highest Rate/Rank:				AS3

Performance Evaluation Averages (number of marks):
				Performance: 3.0(3) Behavior: 2.7(3) OTA: 2.8

Awards and Decorations (as listed on the DD Form 214):  NATIONAL DEFENSE SERVICE MEDAL, NAVY BATTLE "E", NAVY GOOD CONDUCT MEDAL, SEA SERVICE DEPLOYMENT RIBBON, ARMED FORCES EXPEDITIONARY MEDAL, NAVY UNIT COMMENDATION, MERITOURIOUS UNIT COMMENDATION.

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

20011115:	NJP for violation(s) of UCMJ:
	Article 92 (2 specifications):
	Specification 1: Failure to obey a lawful written order between 20020804 to 20010828 by accessing sites containing pornography.
	Specification 2:  Dereliction of duty between 20020804 to 20010828 by willfully failing to stand a proper watch.
	Article 107 (2 specifications):
	Specification 1:  False official statement to MAC(SW) M_ E. L_ on or about 20010804 to 20010828. 
	Specification 2:  False official statement to MAC(SW) M_ E. L_ on or about 20010904
	Article 134 (2 specifications):
	Specification 1:  Misuse of government assets on or about 20010804 to 20010828 by violating the Navy’s Fraud, Waste and Abuse Policy.
	Specification 2:  On or about 20010804 to 20010807, falsely pretend to obtain a service members phone access code to use internet services and did wrongfully obtain from telephone services, of a value about $410.72.
	Award:  Forfeiture of ½ month pay for 2 months, restriction and extra duty for 45 days, reduction to E-3.  Forfeiture suspended for 6 months.
	No indication of appeal in the record.

20020401:	Summary Court-Martial.
	Charge: Violation of the UCMJ, Article 121.
	Specification 1:  On or about 20020218, steal US currency of a value of $60.00, the property of Seaman Apprentice M_ T. A_.
	Specification 2:  On or about 20020219, steal U.S. currency of a value of $100.00, the property of Seaman Apprentice M_ T. A_
	Finding: To Charge and the specifications thereunder, guilty.
	Sentence:  Confinement for 30 days, reduction to E-1.
	Sentence approved and ordered executed.

20020402:	Applicant found fit for confinement.

20020723:	Applicant waived administrative discharge board.

UNDATED:	Commanding Officer, Naval Security Group Activity, Sugar Grove, WV informed Chief of Naval Education and Training of applicant separation delay due to diagnosis of right ear cholesteaoma during pre-separation physical.  Applicant’s separation is pending corrective surgery and follow-up treatment.

20030529:	Counseling:  Advised of deficiencies in performance and conduct (Failure to meet physical readiness test standards.), disciplinary warning issued, necessary corrective actions explained and sources of assistance provided.

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

20040130:	Report of Medical History.  Comments:  Applicant awarded OTH in 08/02.  In accordance with MILPERSMAN Manual of the Medical Department and SECNAVINST 1850.4D a member “shall not be afforded further medical treatment” after receiving a punitive discharge.

20040202:	Separation Physicals:  Medical history reviewed in accordance with MANMED Chapter 15. Applicant has AD hearing loss due to cholesteaoma repair and left should slap lesion of bucket-handle labial tear per MRI.  Applicant given OTH in August 2002.   In accordance with MILPERSMAN Manual of the Medical Department and SECNAVINST 1850.4D applicant shall not be afforded further medical treatment.  Applicant was provided with copies of health record and contact number for Veterans Administrative Health Benefits Service Center and advised to contact them for any possible medical benefits.  In accordance with noted instructions applicant is physically qualified for separation.

Elements of Discharge:  [INVOLUNTARY]

Discharge Process:				ADMINISTRATIVE BOARD PROCEDURE
Date Notified:					NOT FOUND IN RECORD
Reason for Discharge	NOT FOUND IN RECORD
Least Favorable Characterization Authorized:	NOT FOUND IN RECORD

Date Applicant Responded to Notification:		NOT FOUND IN RECORD
Rights Elected at Notification:
Consult with Counsel			ELECTED
Administrative Board			ELECTED
Obtain Copies				NOT FOUND IN RECORD
Submit Statement(s) (date)			NOT FOUND IN RECORD
GCMCA Review				NOT APPLICABLE

Commanding Officer Recommendation (date):	UNDER OTHER THAN HONORABLE CONDITIONS  (UNDATED)
Separation Authority (date):	COMMANDING OFFICER, PERSONEL SUPPORT ACTIVITY, SUGAR GROVE  (20040128)
	Narrative reason directed:			NOT FOUND IN RECORD
	Characterization directed:			NOT FOUND IN RECORD
Date Applicant Discharged:			20040205

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

        Total Number of Pages:				3

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 25 April 2005, 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, Articles 92 ( Failure to obey a lawful written order), 107 ( False official statement) and 121 ( Larceny).

 
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