ex-AOAN, USN
ND07-00832

Current Discharge and Applicant’s Request

Application Received:  20070606 			Characterization Received:  OTHER THAN HONORABLE
Narrative Reason:  MISCONDUCT – DUE TO A COMMISSION OF A SERIOUS OFFENSE 	
Authority:  MILPERSMAN 1910-142     

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

Applicant’s Issues:	1.  Served 2  years 8 months with no adverse action.
			2.  Article 31 rights not explained therefore did not seek legal advice.

Decision

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

Date:  20071220		Location:  Washington D.C	 Representation:  None

Discussion

Issue 1 ():  The Applicant stated that his discharge was based on one isolated incident after two years and eight months of faithful service.  The record documents the Applicant history of malingering for which the Applicant was administratively discharged.  He was processed for misconduct due to the commission of a serious offense as a result of his nonjudicial punishment for violations of UCMJ Articles 86 (unauthorized absence, 2 specifications) and 115 (malingering).  A single violation of UCMJ Article 115 constitutes the “commission of a serious offense” which is punishable by a dishonorable discharge and up to a year of imprisonment if adjudicated by a Courts Martial.  Despite a servicemember’s prior record of service, certain serious offenses warrant separation from the naval service in order to maintain proper order and discipline.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects the Applicant’s 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 Applicant contends that he was not informed of his Article 31 rights and therefore did not seek the advice of counsel.  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 his contention.  To the contrary the record documents the Applicant’s proper notification of his intended administrative discharge wherein he chose not to seek the advice of counsel or to object to his discharge in any way.  The record supports the commission of a serious offense for which the Applicant was administratively discharged. That separation was appropriate and a under other than honorable conditions characterization of service is warranted.  The Board found the Applicant’s discharge proper and equitable.  

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative errors on the original DD Form 214:

	  “UNDER OTHER THAN HONORABLE CONDITIONS”
	  “MISCONDUCT”
	
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) 19970910 - 19971216  	
Period of Service Under Review:
Date of Enlistment: 19971217		Years Contracted:  4	Date of Discharge:  20000913
Length of Service:  02 Yrs 08 Mths 27 Dys			Lost Time:  None reported
Education Level:  12	Age at Enlistment:  20	AFQT:  42   	Highest Rank/Rate:  AOAN
Evaluation marks (# of occasions):	Performance:  3.4 (5)	Behavior:  2.4 (5)	 	OTA:  2.82 (5)
Awards and Decorations (per DD 214):  NONE

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

19981104:	Applicant reports aboard Sea Control Squadron Four One in limited duty status. 

19990216:	Medical record, Psychotherapy comments:  The clinician’s impression is that the patient meets the criteria for Personality Disorder, but that his presentation has been embellished due to secondary gain issues.

19990226:	Medical record, Psychotherapy comments:  Patient is fit for full duty and responsible for his actions.  Recommendation, document further disciplinary problems and handle administratively.

19990716:	Congressional inquiry into Applicant’s discharge based on personality disorder (initiated by Applicant). 

199908XX:	Orders to Sea Control Squadron Thirty Three cancelled due to congressional inquiry.

19991005:	Applicant self refers to CAAC Level III Pt. Loma, enroute to Lemoore SeaOpDet, orders cancelled.

20000222:	Applicant fails sea duty screening, orders to USS BONHOMME RICHARD (LHD 6) cancelled.

20000601:	Applicant ordered to TPU San Diego awaiting medical board.

20000605:	Applicant’s orders to TPU San Diego cancelled.

20000606:	Applicant unauthorized absent from prescribed place of duty (doctors appointment).

20000614: 	Applicant reports back aboard Sea Control Squadron Four One, San Diego.

20000714:	Applicant to unauthorized absence from prescribed place of duty (command PRT).

20000715:	Evaluation for period of 19990901 through 20000715, block 43 comments on performance:  Counseled on numerous occasions for tardiness in reporting for work, failure to report for work and delinquent accounts.  Member scored 31% on test for E-4, does not attempt to work in rate or make up lost time.  Member is continuously in LimDu status, he was found fit for duty on four separate occasions, given overseas screening, cut orders and then found unfit for duty due to a different ailment.  Member was counseled several times for failing to report to physical therapy or medical boards when scheduled.  One of one significant problems, 2.33 trait average.

20000726:	NJP – Viol UCMJ Art. 86 (unauthorized absence, 2 specifications) and Article 115 (malingering from			20000216 until 20000725).
	Awarded - FOP ($565/month for 2 months, suspended for 6 months); Restr (60 days).

Undated:	Commanding Officer, Sea Control Squadron 41 recommended to Commander, Naval Air Force, U. S. Pacific 		the Applicant’s discharge by reason of misconduct due to the commission of a serious offense with a service 		characterization of under other than honorable conditions.  Commanding Officer’s comments, “Airman 
		Apprentice C_ (Applicant) has demonstrated a consistent inability to adhere to the Navy’s policies and 
		regulations.  He arrived at VS-41 on 4 November 1998 in a LIMDU status.  We have tried unsuccessfully to 		get AOAA C_ fit for full duty so that he could return to Sea Duty.  Several times he has not been able to 
		execute official duty orders because something “new” occurred each time orders were issued by his detailer. 
		During individual psychotherapy sessions AOAA C_ admits that he “just wants to get out of the Navy.”
		Mental evaluation doctors have written in his record that he “meets the criteria for Personality Disorder but 
		that his presentation has been embellished due to secondary gain issues.” Furthermore, recently doctors have 		established that his knee is perfectly healthy.  He went to doctors complaining of knee pain, through X-rays 
		and performing a knee scope, they have determined that he is in excellent health.  It has become readily
		apparent AOAA C_ has gone to great lengths to avoid sea duty and has exhausted his chain of command with 		administrative burdens.  During Captain’s Mast he admitted guilt to all charges and acknowledged this type 
		of deceit would continue if the command were to transfer him to USS CONSTELLATION (currently under 
		orders to report in August).  I therefore forward and recommend that he be separated from the Naval service
		with an Other Than Honorable discharge.”

Discharge Process

Date Notified:					20000725     
Reason for Discharge:	 - 
	
Least Favorable Characterization:	

Date Applicant Responded to Notification:		20000725
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			  
	Administrative Board			
	
Commanding Officer Recommendation (date):	 (undated)
Separation Authority (date):	Commander, Naval Air Force, U. S. Pacific Fleet (20000831)
              Reason for discharge directed:	 - 
              Characterization directed:	
Date Applicant Discharged:	20000913

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 30, dated 7 Nov 00, effective 30 Aug 00 until 24 Jan 01, Article 1910-142 [formerly 3630605]. 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, Article 115.

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