ex-RMSA, USN
ND07-00335

Current Discharge and Applicant’s Request

Application Received:  20070125 	Characterization Received:  
Narrative Reason:  MISCONDUCT Authority:  MILPERSMAN 1910-142

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1. VA Benefits
			2. Discharge inequitable-witness not permitted to speak at NJP proceedings
			3. Post Service

Decision

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

Date:  20071011       					Location:  Washington D.C. 	

Discussion

Issue 1:   either  which the Board cannot form the basis of relief for the Applicant, or  the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum regarding .  

Issue 2: ().  The Applicant implies that he was treated unfairly during nonjudicial punishment proceedings.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was wrongfully charged and disciplined.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  

When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  An under 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 conduct during the current period of service, which forms the primary basis for determining the character of his service was marred by the award of two nonjudicial punishments (NJP) for violations of the Uniform Code of Military Justice (UCMJ), Article 86 [Unauthorized Absence (3 specifications)], Article 91 [Insubordinate conduct (3 specifications)], Article92 (Failure to obey a lawful written order), Article 107 (False Official statement), and Article 134 [Threat, communicating (2 specifications)].  Violations of UCMJ Articles 92 and 107 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.  

Issue 3: ().  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 documentation concerning education and evidence of a work history.  The Applicant's efforts need to be more encompassing than those provided.  For example, the Applicant could have produced evidence of community service, certification of non-involvement with civil authorities, and references of his character. The Board determined that the documentation provided by the Applicant did not mitigate the misconduct that resulted in the characterization of 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 

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

	  “00  11  00”
	  “UNDER OTHER THAN HONORABLE CONDITIONS”
	
The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate. 

Summary of Service

Prior Service:
Inactive: USNR (DEP)	19981120 - 19981129  		Active:   
Period of Service Under Review:
Date of Enlistment: 19981130		Years Contracted:  	Date of Discharge:  19991029
Length of Service:  00  Yrs  11  Mths  00  Dys	Lost Time:  Days UA:    Days Confined:  
Education Level:  	Age at Enlistment:  	AFQT:  64	Highest Rank/Rate:  RMSA
Evaluation marks (# of occasions):	Performance:  1.5(2)	Behavior:  1.0(2)	 OTA:  1.34 
Awards and Decorations (per DD 214):  NONE

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

19981201:	Counseling Entry.  Applicant acknowledged he is retained despite fraudulent induction  for failure to disclose enlistment eligibility information.   Additional notified that further deficiencies in performance or conduct may result in processing for administrative separation.

19990729:	NJP -- Viol UCMJ Art. 86 - Unauthorized absence, Art. 91 - Insubordinate conduct, Art. 134 (2 specs) - Threat, communicating.
	Awarded - Bread and water for (3 days).

19990802:	Applicant notified of Adverse Evaluation Report (19990716-19990729)

19991012:	NJP -- Viol UCMJ Art. 86 (2 specs) - Unauthorized absence, Art. 91 (2 specs) - Insubordinate conduct, Art. 92 - Failure to obey lawful written order, Art. 107 - False official statement.
	Awarded - Restr for (30 days); Extra duties (30 days).

19991029:	Applicant notified of Adverse Evaluation Report (199900730-19991029)

Discharge Process

Date Notified:					NOT FOUND IN RECORD
Reason for Discharge:	
Least Favorable Characterization:	

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

Administrative Board (if any):	NOT FOUND IN RECORD

Commanding Officer Recommendation (date):	
Separation Authority (date):	COMMANDER, AMPHIBIOUS GROUP TWO (1991027)
              Reason for discharge directed:	 - 
              Characterization directed:	
Date Applicant Discharged:	19991029

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)  Applicant's drivers license

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 December 1997 until 29 March 2000, Article 1910-142, 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, Articles 92, 107,and 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 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