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

Docket No. ND07-00138

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

ex-ITSR, USN
ND07-00138

Current Discharge and Applicant’s Request

Application Received:  20061108	Characterization Received:  GENERAL
Narrative Reason:  MISCONDUCT Authority:  MILPERSMAN 1910-142

Applicant’s Request:	Characterization change to:  HONORABLE  
			Narrative Reason change to: NONE REQUESTED
Applicant’s Issues:	1. Veterans Benefits - Equity
			2. Diagnosed with Schizophrenia – Equity
			3. Post Service - Equity 

Decision

By a vote of 5-0 the Characterization shall remain GENERAL (UNDER HONORABLE CONDITIONS).	
By a vote of 5-0 the Narrative Reason shall remain MISCONDUCT.

Date:  20070912  Location:  Washington D.C.  The Board found that the discharge was proper and equitable.

Discussion

Issue(s) 1 - Equity:  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 regarding this Issue.  

Issue 2 (Equity):  The Applicant contends that his problems in the Navy can be attributed to his "Diagnosed Mental illness."  While he may feel that his mental illness 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.  A discharge upgrade to Honorable would be inappropriate.

Issue 3 (Equity):  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 should be provided to the Board include verifiable employment records, credible evidence of a substance free lifestyle and cetification of non-involvement with civil authorities.  As of this time, the Applicant has not provided sufficient post-service documentation to consider mitigating the misconduct that resulted in the characterization of discharge.  

Summary of Service

Prior Service:
Inactive: USNR (DEP)	20010828 - 20010924  COG	Active:   NONE	
Period of Service Under Review:
Date of Enlistment: 20010925	Years Contracted:  4; Extension:  12 MONTHS  	Date of Discharge:  20021002
Length of Service:  01  Yrs  00  Mths  16  Dys	Lost Time:  Days UA:  2  Days Confined:  NONE
Education Level:  12	Age at Enlistment:  18	AFQT:  54	Highest Rank/Rate:  ITSN
Evaluation marks (# of occasions):	Performance:  2.0(1)	Behavior:  1.0(1)	 OTA:  1.83 
Awards and Decorations (per DD 214):  NATIONAL DEFENSE SERVICE MEDAL 

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

20020106:	Applicant to UA, 2145, 20020106.

20020108:	Applicant from UA 2216, 20020108.
 
20020520:	CO's NJP -- Viol UCMJ Art. 92 – Disobeyed a lawful order; viol UCMJ Art. 128 – Simple Assault; viol UCMJ Art. 134 – Disorderly conduct.  Awarded - Restr for (14days); Extra duties (14days).

Undated:	CO's NJP -- Viol UCMJ Art. 134 – Underage drinking; viol UCMJ Art 91 – Insubordinate conduct toward a commissioned officer; viol UCMJ Art. 92 – Failure to obey order or regulation.  Awarded - FOP (1/2 month pay) for (2 months); 3 days bread and water, Restr for (21days); Extra duties (21days). [Extracted from Evaluation Report dtd 20021002] 

Undated:	Applicant failed to complete CAAC Level One Rehabilitation due to UA and non-participation [Extracted from Evaluation Report dtd 20021002].

Discharge Process

Date Notified:					NOT FOUND IN RECORD
Reason for Discharge:	MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE
	
Least Favorable Characterization:	NOT FOUND IN RECORD

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

Commanding Officer Recommendation (date):	NOT FOUND IN RECORD
Separation Authority (date):	NOT FOUND IN RECORD
              Reason for discharge directed:	NOT FOUND IN RECORD 
              Characterization directed:	NOT FOUND IN RECORD
Date Applicant Discharged:	20021002

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), re-issued October 2002, effective 22 August 2002 until 25 January 2004, 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 91 (Insubordinate conduct towards a commissioned officer), 92 (Disobeying a lawful order) and 134 (underage drinking).

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