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

Docket No. ND07-00503

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

, ex-SA, USN
ND07-00503

Current Discharge and Applicant’s Request

Application Received:  20070306 			Characterization Received:  
Narrative Reason:  MISCONDUCT-COMMISSION OF A SERIOUS OFFENSE Authority:  MILPERSMAN 3620200

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

Applicant’s Issues:	1.  VA Benefits
			2.  Disrespect to a commissioned officer is not smart, but not a serious offense.
			3.  Post Service – Employed and family

Decision

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

Date:  20071108  					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 contends that being disrespectful to a commissioned officer is not a serious offense.  For the information of Applicant, the record clearly documents the Applicant’s two nonjudicial punishments for violations of UCMJ Articles 90 (disobeying a commissioned officer), 91 (disrespect) and 92 (failure to obey, 3 specifications).  Each of these violations are defined by the manual for courts-martial as serious offenses and as such constitute the “commission of a serious offense”.  Each violation of the above articles is punishable by a dishonorable discharge and up to five years of imprisonment if adjudicated by a Courts Martial.  The commission of a serious offense is the actual basis for discharge in this case.   Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considers his discharge proper and equitable.  

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 his statement in which he states that he now has a family and is employed in support of his post-service claim.  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 statement provided by the Applicant did not mitigate the misconduct which resulted in his discharge and the characterization of his service.  

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence (to include evidence submitted by the Applicant) to rebut the presumption.  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)	19911213 - 19911225  		Active:   
Period of Service Under Review:
Date of Enlistment: 19911226		Years Contracted:    		Date of Discharge:  19940930
Length of Service:  02 Yrs 09 Mths 05 Dys					Lost Time:  
Education Level:  	Age at Enlistment:  	AFQT:  44	Highest Rank/Rate:  SN
Evaluation marks (# of occasions):	Performance:  3.1		Behavior:  3.0	 OTA:  3.16 (5)
Awards and Decorations (per DD 214):  NATIONAL DEFENSE SERVICE MEDAL

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

19930823:	NJP - Viol UCMJ Art. 90 (disobeying a superior commissioned officer); Viol UCMJ Art. 91(disrespectful language toward a petty officer);  Viol UCMJ Art. 92 (fail to obey a lawful general order).
	Awarded - RIR (E-2); Restr (45 days); Extra duties (45 days).

19940906:	NJP - Viol UCMJ Art. 92 (disrespectful in language toward a petty officer); Viol UCMJ Art. 92 (2 specs, fail to obey a petty officer and fail to obey a commissioned officer).
	Awarded - FOP ($200.00 1month); RIR (E-2); Restr (14 days); Extra duties (21 days).

19940906:	Commanding Officer USS CAPE COD recommended to BUPERS the Applicant’s discharge by reason of misconduct due to the commission of a serious offense with a other than honorable characterization of service.  Commanding Officer’s comments:  “...SA T_ (Applicant) did not care and would be disrespectful towards anyone in authority over him.  SA T_ stated, at mast that he did not desire to remain in the Navy and wanted to be separated from the naval service....”

Discharge Process

Date Notified:					19940906
Reason for Discharge:	 - 
	MISCONDUCT – DRUG ABUSE
	MISCONDUCT – PATTERN OF MISCONDUCT
Least Favorable Characterization:	

Date Applicant Responded to Notification:		19940906
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			 (BUT FAILED TO DO SO)
	Administrative Board			
	
Commanding Officer Recommendation (date):	 (19940916)
Separation Authority (date):	BUPERS (19940923)
              Reason for discharge directed:	 - 
              Characterization directed:	
Date Applicant Discharged:	19940930

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 9, effective 22 July 1994 until 2 October 1996, 
Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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 violations of the UCMJ, Articles 90, 91 and 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