FOR
 ex-AR, USN
ND07-00035

Current Discharge and Applicant’s Request:

Application Received:  				20061002
	Characterization of Service:		
	Reason for Discharge:			 - 
	Discharge Authority:			MILPERSMAN 3630600
	Duty Assignment/Command at Discharge:	USS ABRAHAM LINCOLN (CVN-72)

Applicant’s Request:	
	Characterization change to:		
	Narrative Reason change to: 		
	Review Requested:			
	Representation:				
	
Applicant Issues: 
1. Youth and immaturity
2. Post service.
Decision:

By a vote of  the Characterization shall  .	
By a vote of  the Reason for Discharge shall  MISCONDUCT.

Date of Decision:					20070816     
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:	
Regarding equity, the Board found the discharge:	

Issue 1 (Equity): The Applicant contends that his misconduct while in the Navy is attributable to his youth and immaturity at the time.  While he may feel that immaturity was the underlying cause, the record clearly reflects the Applicant’s willful misconduct and demonstrated that 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 member’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 a nonjudicial punishment (Captains Mast) for violation of six (6) Articles of the Uniform Code of Military Justice:  Art 86, Unauthorized Absence; Art 91, Disrespect to a petty officer; Art 92, Failure to obey a lawful order; Art 134, Threat, communicating; and two specifications of Art 112a, Wrongful use of a controlled substance (marijuana).   Five of these are considered serious offenses for which a punitive discharge would have been authorized if adjudged by a Special or General Court-Martial.  An upgrade to under honorable conditions would therefore be inappropriate in this case.

Issue 2 (Equity):  The NDRB is authorized to consider post-service factors in deciding whether to re-characterize a discharge.  However, there is no law or regulation providing that an unfavorable discharge may be upgraded based solely on the passage of time, good conduct, or favorable endorsements in the civilian life subsequent to leaving the service.   Ordinarily, the NDRB must find that a procedural impropriety or inequity existed during the period of enlistment in question before it can grant relief.  Outstanding post-service conduct is considered by the NDRB 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.  The Applicant provided only one general letter of  recommendation as documentation of his post-service accomplishments and conduct.  The Applicant's efforts need to be more encompassing.  For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, evidence of drug free existence, and certification of non-involvement with civil authorities.  The Board determined that the documentation provided by the Applicant did not mitigate the misconduct that resulted in the characterization of his discharge.    

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)				19941031 - 19941113  
Active:   					

Period of Service Under Review:
Date of Enlistment:  				19941114
Years Contracted:  				; Extension:  
Date of Discharge:				19951113
Length of Service
	Active:					01  Yrs  00  Mths  00  Dys  (does not exclude lost time)
	Inactive:					NONE
	Time Lost During This Period:		  Days UA:    Days Confinement:  

Education Level:  				
Age at this Enlistment:  				
AFQT:  						37
Highest Rate/Rank:				AR
Performance Evaluation Averages (number of marks):
				Performance: 1.0(1) Behavior: 1.0(1) OTA: 1.0

Awards and Decorations (as listed on the DD Form 214):  NATIONAL DEFENSE SERVICE MEDAL

Service Record Entries Related to Characterization of Service or Reason for Discharge

19950715:	NJP for violation(s) of UCMJ:
	Article 86: UA from appointed place of duty.
	Article 91: Disrespect to a petty officer.
	Article 92: Failure to obey a lawful order by missing liberty risk muster.
	Article 134: Communicated a threat. 
	Article 112a: (2 specs), Wrongful use of marijuana. 
	Award:  Forfeiture of $427.00 for 2 months, restriction and extra duty for 45 days.
	No indication of appeal in the record.

19950802:	Medical Officer’s drug and alcohol evaluation determined applicant drug dependent.

19950802:	Applicant declined Level III treatment for drug dependency.

Elements of Discharge:  [INVOLUNTARY]

Date Notified:					19950726
Reason for Discharge	 - 
	 - 
	
Least Favorable Characterization Authorized:	

Date Applicant Responded to Notification:		19950726
Rights Elected at Notification:
Consult with Counsel			
Obtain Copies of Documents		
Submit Statement(s) (date)			 
Administrative Board			
GCMCA Review				

Commanding Officer Recommendation (date):	 (19950808)
Separation Authority (date):	BUPERS WASHINGTON DC (19950912)
	Reason for discharge directed:		 - 
	Characterization directed:			
Discharge Held in Abeyance Pending
 Art 32 Investigation				BUPERS WASHINGTON (message dtd 19951012)		
Date Applicant Discharged:			19951113

Additional Documents Submitted by Applicant and Considered By Board

Total Number of Pages:				10
       
Related to Period of Service Under Review:
	From Service and/or Medical Record:		Other Records:	

Related to Other Period(s) of Service:
	From Service and/or Medical Record:		Other Records:	
       
Related to Post-Service Period:
	Employment:					Finances:	
	Health/Medical Records:				Substance Abuse:	
	Family/Personal Status:				Education:	
 	Community Service Efforts:			References:	
	Criminal Records:			

Other:
	Additional Statements From Applicant:		From Representative:	
        	Other Documentation (Describe)		 Staging Application Detail Form

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective 
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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 91, 92, 112a, 134.

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