ex-AT3, USN
ND07-00766

Current Discharge and Applicant’s Request

Application Received:  20070514	Characterization Received:  GENERAL
Narrative Reason:  PATTERN OF MISCONDUCT 	Authority:  MILPERSMAN 1910-140

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1.  Seeking upgrade for VA Benefits
			2. Discharge based on one Page 13
			3. Post service 

Decision

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  SECRETARIAL AUTHORITY.

Date:  20071220		Location:  Washington D.C	 Representation:  

Discussion

Issue 1.    which the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum for additional information regarding Service Benefits.

Issue 2  ().  The Applicant contends that his administrative separation was based on a page 13 given to him almost four years earlier, in May of 2001.  Pursuant to MILPERSMAN 1910-140 members may be separated when during their current enlistment they have at least two nonjudical punishments (NJP), court-martials, civil convictions or a combination thereof and a page 13 retention warning.  The record indicates that the Applicant was administratively processed and subsequently discharged for a pattern of misconduct even though he did not meet the criteria for processing in that he did not have two or more NJP’s, court-martial or civil convictions or a combination thereof.  The transmittal letter submitted by the officer in charge of Aircraft Intermediate Maintenance Detachment, Jacksonville, Florida on 20050105 indicates that Applicant had no involvement with civilian authorities and only one OIC’s Mast on 20041209 that was refused by the member.  Based on the evidence contained in the record the Board has determined that the command erroneously discharged the Applicant for a pattern of misconduct and that such error was not prejudicial to him since the Applicant could have been processed under MILPERSMAN 1910-142, for commission of a serious offense, in violation of the UCMJ, Art. 92 (1), Failure to obey a lawful order.  The Board recommends that the narrative reason be changed to Secretarial Authority.  However, there is no recommendation to change the characterization based on the misconduct that resulted in the Applicant’s discharge.
 
Issue 3 ().  The Applicant further contends that since his discharge in 2005 he obtained full-time employment and has been attending college full-time as well.  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 could 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.  As of this time, the Applicant has not provided any post-service documentation to consider mitigating 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 even though Applicant was erroneously processed for pattern of misconduct instead of commission of a serious offense, the discharge itself was proper.
Summary of Service

Prior Service:
Inactive: USNR (DEP)	20000911 - 20000928  		Active:   	
Period of Service Under Review:
Date of Enlistment: 20000929	Years Contracted:  ; Extension:  	Date of Discharge:  20050214
Length of Service:  04  Yrs  04  Mths  16  Dys	Lost Time:  Days UA:    Days Confined:  
Education Level:  	Age at Enlistment:  	AFQT:  80	Highest Rank/Rate:  AT3
Evaluation marks (# of occasions):	Performance:  3.5(4)	Behavior:  2.2(4)	 	OTA:  3.10 
Awards and Decorations (per DD 214):  NDSM, SSDR, GCA

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

20010530:	Retention Warning for violation of the UCMJ. Art(s) 86, 92x3, Art 86: UA from PT 0500-0720 on 20010305. Art 92-Failure to be inspection ready on 20010517; incomplete homework on 20010405; wearing tongue ring in uniform at school.

20041209:	OIC Mast held for violation of Article 92 – Failure to obey order or regulation.  NJP refused by member.

Discharge Process

Date Notified:					20040112
Reason for Discharge:	 - 
	
Least Favorable Characterization:	

Date Applicant Responded to Notification:		20050121
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			
	Administrative Board			
	GCMCA review				

Commanding Officer Recommendation (date):	 (20050125)
Separation Authority (date):	COMMANDER, SEA CONTROL WING, U. S. ATLANTIC FLEET.   (20050128)
              Reason for discharge directed:	 - 
              Characterization directed:	
Date Applicant Discharged:	20050214

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 Aug 2002 until 25 April 2005, Article 1910-140 (formerly 3630600), 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