Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: janet.goode
Company: NCPB

Docket No. ND07-00836

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

ex-BMSA, USN
ND07-00836

Current Discharge and Applicant’s Request

Application Received:  20070605 	Characterization Received:  UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason:  MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE 	Authority:  MILPERSMAN 3630600

Applicant’s Request:	Characterization change to:  GENERAL (UNDER HONORABLE CONDITIONS)
			Narrative Reason change: NONE REQUESTED

Applicant’s Issues:	1.  Reenlist in California Army National Guard
			2.  Inequitable because based on one incident in 32 months of service.

Decision

By a vote of 5-0 the Characterization shall remain UNDER OTHER THAN HONORABLE CONDITIONS.
By a vote of 5-0 the Narrative Reason shall remain MISCONDUCT.

Date:  20071220     	DOCUMENTARY REVIEW	Location:  Washington D.C	 Representation:  NONE

Discussion

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

Issue 2 (Equity):  The Applicant stated that his discharge was based on one isolated incident.  Although this may have been the action which forced the command to process the Applicant for administrative discharge he was processed properly for both misconduct due to the commission of a serious offense and misconduct due to a pattern of misconduct.  The summary of service clearly documents the Applicant’s four NJPs for violations of UCMJ Articles 86 (unauthorized absence), 92 (failure to obey, 2 specifications), 128 (assault, 2 specifications), and 134 (communicating a threat).  Each violation of Articles 92, 128 and 134 constitutes the “commission of a serious offense”.  These offenses are punishable by a maximum of a dishonorable discharge and up to 3 years of imprisonment for each specification 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 forms the primary basis for determining the character of 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 to the characterization of his service. 

In reviewing discharges, the Board presumes regularity in the conduct of governmental 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 the discharge was proper and equitable.

Administrative Corrections to the Applicant’s DD 214

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

	Block 28, Narrative Reason for Separation, should read: “MISCONDUCT”
	
The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate. 

Summary of Service

Prior Service:
Active:   19910131 - 19910418  HON US Army
California Army National Guard 02 Yrs 07 Mths 09 Dys  
Period of Service Under Review:
Date of Enlistment: 19910626		Years Contracted:  4 		Date of Discharge:  19930810
Length of Service:  02 Yrs 01 Mths 15 Dys					Lost Time:  NONE
Education Level:  12	Age at Enlistment:  20	AFQT:  81	Highest Rank/Rate:  BM3
Evaluation marks (# of occasions):	Performance:  3.7 (3)	Behavior:  3.5 (3)	 	OTA:  3.80 (3)
Awards and Decorations (per DD 214):  Battle “E” Ribbon, SWASM, NDSM, Army Service Ribbon, Marksmanship Badge M-16 Rifle, Sharpshooter Badge Hand Grenade, Army Lapel Button, Aircraft Crewman Badge

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

19920305:	NJP - Viol UCMJ Article 134 (riding patient litter hoist up and down).
	Awarded - RIR (E-2, suspended for 6 months); Restr (14 days); Extra duties (14 days).

19920318:	Retention Warning for skylarking.

19921029:	NJP - Viol UCMJ Article 92 (failure to obey, ESWS qualification).
	Awarded - RIR (E-2, suspended 2 months).

19930315:	Retention Warning for violation of UCMJ Article 134 (disorderly conduct).

19930610:	NJP - Viol UCMJ Article 128 (assault) and 134 (communicating a threat).
	Awarded - FOP ($503/month for 2 months); RIR (E-3, suspended 6 months); Restr (30 days); Extra duties (30 days).

19930610:	Retention Warning for violations of UCMJ Article 128 (assault) and 134 (communicating a threat).

19930706:	Reduction in rate awarded and suspended at NJP 19930610, vacated.

19930706:	NJP – Viol UCMJ Article 86 (unauthorized absence), 92 (failure to obey a lawful written order), and 128 (assault consummated by battery).
	Awarded – RIR (E-2), Restr (45 days), Extra duties (45 days).

Discharge Process

Date Notified:					19930708     
Reason for Discharge:	MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE
	MISCONDUCT - PATTERN OF MISCONDUCT
	
Least Favorable Characterization:	UNDER OTHER THAN HONORABLE CONDITIONS

Date Applicant Responded to Notification:		19930709
Rights Elected at Notification:
	Consult with Counsel			WAIVED
	Obtain Copies of Documents		ELECTED
	Submit Statement(s) (date)			WAIVED 
	Administrative Board			WAIVED
	
Commanding Officer Recommendation (date):	UNDER OTHER THAN HONORABLE CONDITIONS (19930721)
Separation Authority (date):	BUPERS (19930728)
              Reason for discharge directed:	MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE
              Characterization directed:	UNDER OTHER THAN HONORABLE CONDITIONS
Date Applicant Discharged:	19930810

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 5, effective 05 Mar 93 until 21 Jul 94, 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 violation of the UCMJ, Article 92, 128, 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