ex-AOAN, USN
ND07-00164

Current Discharge and Applicant’s Request

Application Received:  20061127 		           Characterization :  
Narrative Reason:  PATTERN OF MISCONDUCT 				       Authority:  MILPERSMAN 1910-140

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1. Minor misconduct did not warrant discharge
			2. Post-service conduct

Decision

By a vote of  the Characterization shall  .	
By a vote of  the Narrative Reason shall  PATTERN OF MISCONDUCT.

Date:  20071011		Location:  Washington D.C. 	Representative:  American Legion

Discussion

Issue 1 ().  The Board did not concur with the Applicant’s contention that his misconduct did not warrant discharge.  Contrary to his claim of 2 minor incidents, the Board found that the record demonstrated repeated misconduct on the Applicant’s part despite consistent command efforts to rehabilitate him with positive incentives and, when those failed, corrective punishment.  When the service of a member of the U.S. Navy meets acceptable standards of conduct and performance, it is appropriate to characterize that service as honorable.  The Applicant’s service was marred by 2 retention warnings and 3 nonjudicial punishment proceedings for at least 11 violations of Articles 86 of the UCMJ.  There is no evidence in the record to indicate that the Applicant was not responsible for his misconduct or should not have been held accountable.  The Board noted that, while the Applicant’s service record did not contain a copy of the notice of administrative separation, the Commanding Officer’s letter of 20050815 referenced a notification using administrative discharge board procedures, the appropriate procedures in the Applicant’s case.  The Board was satisfied that the presumption of regularity in the conduct of government affairs was supported by the available evidence in this case. 

Issue 2 ().  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 the service.  The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge 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.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was found not to mitigate the conduct which precipitated the 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, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that 

Summary of Service

Prior Service:
Inactive: USNR (DEP)	20020130 - 20030128  		Active:   
Period of Service Under Review:
Date of Enlistment: 20030129	Years Contracted:  ; Extension:    		Date of Discharge:  20050913
Length of Service:  02  Yrs  07  Mths  15  Dys	Lost Time:  Days UA:    Days Confined:  
Education Level:  	Age at Enlistment:  	AFQT:  54	Highest Rank/Rate:  AOAN
Evaluation marks (# of occasions):	Performance:  3.5(2)	Behavior:  2.0(2)	 	OTA:  2.92 
Awards and Decorations (per DD 214):  NATIONAL DEFENSE SERVICE MEDAL, SEA SERVICE DEPLOYMENT RIBBON, GWOT SERVICE MEDAL

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

20031121:	NJP -- Viol UCMJ Art. 86 - Unauthorized absence on 20031120.
	Awarded - FOP ($678.00) for (2 months); RIR (E-2); Restr for (30 days).  FOP and RIR susp 6 months.

20031121:	Retention Warning for NJP of this date.

20040108:	NJP -- Viol UCMJ Art. 86 (3 specs) - Unauthorized absence.
	Awarded - FOP ($665.70) for (2 months); RIR (E-2); CCU for (30 days).  RIR suspended for 6 months.

20040108:	Retention Warning.  No further information found in record.  
	[Extracted from Commanding Officer’s letter dated 20050815.]

20040109:	Applicant to correction custody.

20040116:	Applicant’s punishment of CCU remitted this date due to closure of correctional custody facility.

20050516:	Applicant submitted statement to Commanding Officer regarding pending NJP.

20050520:	NJP -- Viol UCMJ Art. 86 (10 specs – NDRB note:  3 specs indicate same time/date of offense) - Unauthorized absence.
	Awarded - FOP ($773.85) for (2 months).

Discharge Process

Date Notified:					NOT FOUND IN RECORD
Date Applicant Responded to Notification:		NOT FOUND IN RECORD
Commanding Officer Recommendation (date):	 (20050815)
Separation Authority (date):	COMCARSTRKGRU NINE (20050906)
              Reason for discharge directed:	 - 
              Characterization directed:	
Date Applicant Discharged:	20050913

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), Change 11, effective 26 April 2005 until Present, Article 1910-140, 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.

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