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

Docket No. ND06-01194

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

Docket No. NDXX-00000

ex-SR, USN
ND06-01194

Current Discharge and Applicant’s Request:

Application Received:  				20060920     
Characterization of Service:			
Narrative Reason for Separation:			
Discharge Authority:				MILPERSMAN 1910-140
Last Duty Assignment/Command at Discharge:	USS MOUNT VERNON LSD-39

Applicant’s Request:	
	Characterization change to:		
	Narrative Reason change to: 		
	Review Requested:			
	Representation:				

Decision:

Date of Decision:					20070706
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 Narrative Reason shall remain MISCONDUCT-PATTERN OF MISCONDUCT.

Applicant’s Issues, as summarized by the Board:
1.  Receive Veteran’s Administration benefits.  
2.  Educational pursuits.
3.  Immaturity and poor decision making.

Summary of Service:

Prior Service:
Inactive: USNR (DEP)				19970619-19970817  
Active:   					       

Period of Service Under Review:
Date of Enlistment:  				19970818     
Years Contracted:  				;  
Date of Discharge:				20000225
Length of Service
	Active:					02  Yrs  06  Mths  08  Dys  (does not exclude lost time)
	
Time Lost During This Period:			28
Days UA:  					28 

Education Level:  				
Age at this Enlistment:  				
AFQT:  						NOT FOUND IN RECORD
Highest Rate/Rank:				SN

Performance Evaluation Averages (number of marks):
				Performance: 4.0(1) Behavior: 2.0(1) OTA: 3.33

Awards and Decorations (as listed on the DD Form 214):  ARMED FORCES EXPEDITIONARY MEDAL, NAVY UNIT COMMENDATION, SEA SERVICE DEPLOYMENT RIBBON, ENLISTED SURFACE WARFARE SPECIALIST

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

19990107:	NJP for violation(s) of UCMJ:
	Article 86: UA from 0730, 19981201 to 1630, 19981225. 
	Award:  Forfeiture of $200.00 for 1 month (suspended for 6 months), restriction and extra duty for 22 days.
	No indication of appeal in the record.

19990519:	NJP for violation(s) of UCMJ:
	Article 92: Failure to obey other lawful order.
	Article 134: Fleeing the scene of accident
	Award:  Restriction and extra duty for 30 days, reduction to the next inferior pay grade (suspended for 6 months).
	No indication of appeal in the record.

19990520:	Forfeiture of pay awarded at NJP on 19990107 vacated due to continued misconduct.

19991030:	Reduction in pay grade awarded at NJP on 19990519 vacated due to continued misconduct.

19991030:	NJP for violation(s) of UCMJ:
	Article 92: Failure to obey an order. 
	Article 128: Simple assault. 
	Award:  Forfeiture of $479.00 for 1 month, restriction and extra duty for 30 days, reduction to E-1.
	No indication of appeal in the record.

20000120:	NJP for violation(s) of UCMJ:
	Article 86: Unauthorized absence from 0700, 20000101 to 1930, 20000104. 
	Award:  Forfeiture of $502.00 for 2 months, restriction and extra duty for 45 days.
	No indication of appeal in the record.

Elements of Discharge:  [INVOLUNTARY]

Discharge Process:				NOTIFICATION PROCEDURE
Date Notified:					20000121
Reason for Discharge				 due to:  
						
Least Favorable Characterization Authorized:	UNDER OTHER THAN HONORABLE

Date Applicant Responded to Notification:		20000124
Rights Elected at Notification:
Consult with Counsel			
Administrative Board			
Obtain Copies				
Submit Statement(s) (date)			 

Commanding Officer Recommendation (date):	 (20000121)
Separation Authority (date):	COMPHIBGRU THREE (20000225)
	Narrative reason directed:			
	Characterization directed:			OTHER THAN HONORABLE
Date Applicant Discharged:			20000608

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:		1     
        Other Documentation	 (Describe Below)		2     

        Total Number of Pages:				4     

       Description of Other Documentation:
       	Letter from Department of Veterans Affairs, dtd May 24, 2006, Decisional letter from Department of Veterans Affairs, dtd May 21, 2006      

Applicant’s Issues, as summarized by the Board:
1.  Receive Veteran’s Administration benefits.  
2.  Educational pursuits.
3.  Immaturity and poor decision making.

Issue 1-2: The Board determined that these issues were 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.

Decisional Issues:
The Board accepted Issue 3 for consideration.        

Issue 3 ().  The Applicant contends that he was lacking knowledge which allowed him to make a foolish decision to be separated from the Navy.  While he may feel that this was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  An under other than honorable conditions 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 four nonjudicial punishments (NJP), for two violations of the Uniform Code of Military Justice (UCMJ) Article 86, two violations of Article 92, a violation Article 128, and a violation of Article 134.  Violations of UCMJ Articles 92, 128, and 134 are considered serious offenses for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial.  An upgrade to honorable would be inappropriate.  Relief denied

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.

Minority Opinion

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective
12 Dec 1997 until 21 Aug 2002, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - 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, Article 92: Failure to obey a lawful order; 128: Assault; and 134: Fleeing the scene of an accident.

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