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

Docket No. ND07-00126

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

ex-AR, USN
ND07-00126

Current Discharge and Applicant’s Request

Application Received:  20061108	Characterization Received:  OTHER THAN HONORABLE CONDITIONS
Narrative Reason:  MISCONDUCT Authority:  MILPERSMAN 1910-142

Applicant’s Request:	Characterization change to:  GENERAL (UNDER HONORABLE CONDITIONS)  
			Narrative Reason change to: NONE REQUESTED
Applicant’s Issues:	1. Change Reenlistment Code
			2. Service conduct due to immaturity
			3. Post Service

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:  20070906       Location:  Washington D.C.  The Board found that the discharge was proper and equitable.

Discussion

Issue 1:  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 regardingthis Issue.  

Issue 2: (Equity). The Applicant contends that his problems were attributed to his immaturity.  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 one retention warning, the award of two nonjudicial punishments (NJP), Article 86 (X 2), and Article 92. Violation of UCMJ Article 92 (Failure to obey a lawful general order or regulation) is considered a serious offense for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial.  An upgrade to general (under honorable conditions) would be inappropriate.  

Issue 3: (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 two character statements since your discharge.  The Applicant's efforts need to be more encompassing than those provided.  For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, 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 discharge.  

 Summary of Service

Prior Service:
Inactive: USMCR (DEP)	20030815 - 20031003  COG	Active:   NONE	
Period of Service Under Review:
Date of Enlistment: 20031004	Years Contracted:  4; Extension:  NONE.  	Date of Discharge:  20040804
Length of Service:  00  Yrs  09  Mths  25  Dys	Lost Time:  Days UA:  5  Days Confined:  NONE
Education Level:  12	Age at Enlistment:  25	AFQT:  42	Highest Rank/Rate:  AN
Evaluation marks (# of occasions):	Performance:  N/A	Behavior:  N/A		 OTA:  N/A 
Awards and Decorations (per DD 214):  NATIONAL DEFENSE SERVICE MEDICAL

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

20020221:	Applicant UA 20020218-20020221

20040301:	CO's NJP -- Viol UCMJ Art. 86 - Unauthorized absence (2 specifications), (3days). viol UCMJ Art. 92 – Failure to obey a lawful general order or regulation.   Awarded - FOP ($668.00) for (2 months); RIR (E-2); Restriction (45days); Extra duties (45days).

20040301:	Retention Warning for (Violation of the UCMJ, Articles 86 (Unauthorized absence) with 2 specs, 92 (Failure to obey order or regulation).

20040328:	Applicant UA 20040328-20020430

20040430:	CO's NJP -- Viol UCMJ Art. 86 - Unauthorized absence (2days).  Awarded - FOP ($666.00) for (2 months); RIR (E-1); Restriction (45days); Extra duties (45days).

Discharge Process

Date Notified:					20040614
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:		20040614
Rights Elected at Notification:
	Consult with Counsel			ELECTED
	Obtain Copies of Documents		ELECTED
	Submit Statement(s) (date)			ELECTED
	Administrative Board			ELECTED
	GCMCA review				NOT APPLICABLE

Administrative Board Date:	20040628
              Findings, by preponderance of the evidence:	BY UNANIMOUS VOTE MISCONDUCT - A PATTERN OF MISCONDUCT.
	BY UNANIMOUS VOTE MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.
		
              Recommendation on Separation: 	BY UNANIMOUS VOTE SEPARATE 
              Recommendation on Characterization:	BY UNDER OTHER THAN HONORABLE CONDITIONS

Commanding Officer Recommendation (date):	UNDER OTHER THAN HONORABLE CONDITIONS due to PATTERN OF MISCONDUCT AND COMMISION OF A SERIOUS OFFENSE (20040713)
Separation Authority (date):	COMMANDER, NAVAL AIR FORCE, U.S. PACIFIC FLEET  (20040804)
              Reason for discharge directed:	MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE
              Characterization directed:	UNDER OTHER THAN HONORABLE CONDITIONS
Date Applicant Discharged:	20040804

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) ☒ Marriage Certificate

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 02 until 25 April 2005, 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 violation of the UCMJ, Article 92 (Failure to obey a lawful general order or regulation).

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