ex-ADAR, USN
ND07-00444

Current Discharge and Applicant’s Request

Application Received:  20070221	Characterization Received:  
Narrative Reason:  MISCONDUCT-PATTERN OF MISCONDUCT 	Authority:  MILPERSMAN 3630600

Applicant’s Request:	Characterization change to:  
			Narrative Reason change: 

Applicant’s Issues:	1.  Discharged following request for early release.
			2.  Post Service – 10 years of good behavior, employed, married with four children.

Decision

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  Misconduct-Pattern of Misconduct.

Date:  20071025  					Location:  Washington D.C. 

Discussion

Issue 1 ():  In the Applicant’s letter to the Board he contends that his administrative discharge was a direct result of his request for early release.  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 claim.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that his request for early out in any way resulted in his administrative discharge.  To the contrary the record documents four nonjudicial punishments {violations of UCMJ Articles 86 (unauthorized absence, 3 specifications), 92 (failure to obey, 3 specifications), and 112 (drunk on duty)} and two retention warnings.  These Nonjudicial punishments form the basis for the Applicant’s administrative discharge based on a pattern of misconduct which is defined as three or more nonjudicial punishments during the same enlistment.  For the information of the Applicant, violations of UCMJ Article 92 carry a penalty of a dishonorable discharge and 2 years of imprisonment for each specification if adjudicated by a court martial.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade. 

Issue 2 ():  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 a statement in his letter to the board which insinuates that he has not been involved in any criminal activity since being discharged from the Navy, he is employed and that he is now married with four children as documentation of his post-service accomplishments.  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 which resulted in his discharge and the characterization of his service.  

Summary of Service

Prior Service:
Inactive: USNR (DEP)	19900518 - 19901010  		Active:   	
Period of Service Under Review:
Date of Enlistment: 19901011		Years Contracted:  		Date of Discharge:  19921105
Length of Service:  02  Yrs  00  Mths  25  Dys			Lost Time:  
Education Level:  	Age at Enlistment:  	AFQT:  51	Highest Rank/Rate:  ADAA
Evaluation marks (# of occasions):	Performance:  2.9		Behavior:  3.1		 OTA:  3.2 (2) 
Awards and Decorations (per DD 214):  NATIONAL DEFENSE SERVICE MEDAL, SEA SERVICE DEPLOYMENT RIBBON, JOINT MERITORIOUS UNIT COMMENDATION

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

19901012:	Retention Warning for defective enlistment due to fraudulent entry based on a failure to disclose pre-service civil involvement i.e. 1983 – shoplifting and 1984 – shoplifting.

19920714:	NJP - Viol UCMJ Art. 86 (unauthorized absence, 2 specifications) - failure to go to appointed place of duty on 19920527 and 19920604 and Viol UCMJ Art. 92 (dereliction of duty) - by failing to update his recall on 19920604.
	Awarded - FOP ($398.00 for 1 month); RIR (E-1).

19920714:	Retention Warning violation of UCMJ Article 86 and violation of UCMJ Article 92.

19920918:	NJP - Viol UCMJ Art. 86 (unauthorized absence) – leaving appointed place of duty from 1000 until 1100 on 19920824; Viol UCMJ Art. 112 (reckless driving) on 19920830.
	Awarded - Restr (45 days); Extra duties (45 days).

19920921:	NJP - Viol UCMJ Art. 92 (fail to obey , 2 Specs) - fail to obey CO’s lawful order to berth in restricted men’s quarters on 19920918 and fail to obey BTCM P_’s lawful order to have his barracks room inspection ready on 19920919.
	Awarded - FOP ($392.00 for 2 months).

19920925:	NJP - Viol UCMJ Art. 92 (fail to obey) - violation of a lawful order issued by the CO not to wear civilian clothes while performing athletic activities on 19920918.
	Awarded – Oral admonition.

Discharge Process

Date Notified:					19920925
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)			  (19921005)
	Administrative Board			
	GCMCA review				

Commanding Officer Recommendation (date):	 (19921013)
Separation Authority (date):	BUPERS WASHINGTON DC (19921016)
              Reason for discharge directed:	 - 
              Characterization directed:	
Date Applicant Discharged:	19921105

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, effective 15 Aug 91 until 04 Mar 93), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - A 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.

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.

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