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

Docket No. ND07-00891

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

ex-DCFA, USNR
ND07-00891

Current Discharge and Applicant’s Request

Application Received:  20070531 	Characterization Received:  UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason:  MISCONDUCT 	Authority:  MILPERSMAN 1910-142

Applicant’s Request:	Characterization change to:  HONORABLE
			Narrative Reason change to: NONE REQUESTED
Applicant’s Issues:	1. Discharge not warranted by overall service record
			2. Others not discharged for more serious offenses
			3. Superiors took adverse action for personal reasons
			4.  Post-service conduct.

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 (Propriety/Equity).  An honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate.  A discharge under other than honorable conditions is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the naval service.  The Applicant’s service was marred by 2 retention warnings and 3 nonjudicial punishments for violations of the Uniform Code of Military Justice, Articles 91, 92 and 121.  Violations of Articles 91, 92 and 121 are considered serious offenses for which a punitive discharge is authorized upon conviction at special or general 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 and falls far short of that required for an upgrade of his characterization of service.  

Issue 2 (Equity).  The Applicant claims that his discharge was inequitable because another servicemember was punished less harshly for similar misconduct.  The Board reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis.  If such a review reveals an impropriety or inequity, relief is in order.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service.  Based upon available records, nothing indicates that the Applicant’s discharge was based on an error, or in any way inconsistent with the standards of discipline in the United States Navy.  A preponderance of the evidence reviewed supports the conclusion that the Applicant committed serious offenses, that separation from the Naval service was appropriate, and that an other than honorable discharge was warranted.  

Issue 3 (Propriety/Equity).  The Applicant’s claims do not overcome the presumption of regularity in this case.  There is no evidence to indicate, let alone support the conclusion, that anyone in the Applicant’s chain of command acted improperly or unfairly.  The Applicant was afforded all of his rights, including an administrative discharge board, and exercised them as he saw fit.  The record factually supports the reason for discharge, supports the procedural correctness of discharge, and supports the decision of the Separation Authority that discharge was warranted.

Issue 4 (Equity).  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 the service.  The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge 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.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was found not sufficient to mitigate the conduct which precipitated the discharge at this time.

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 the discharge was proper and equitable.

Summary of Service

Prior Service:	NONE
Period of Service Under Review:
Date of Enlistment: 19950307		Years Contracted:  3; Extension:  15 MONTHS	Date of Discharge:  19991005
Length of Service:  Inactive: 00  Yrs  07  Mths  10  Dys	Active:	03  Yrs  11  Mths  20  Dys               Lost Time:  NONE Education Level:  12		Age at Enlistment:  18		AFQT:  32	Highest Rank/Rate:  DC3
Evaluation marks (# of occasions):	Performance:  2.0(1)	Behavior:  1.0(1)	 	OTA:  1.83 
Awards and Decorations (per DD 214):  SSDR, AFEM, NDSM

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

19951016:	Commenced active duty.

19951016:	Retention Warning for fraudulent enlistment (failure to disclose marijuana use x20, in DEP).

19980914:	NJP -- Viol UCMJ Art. 92 (2 specs) – Dereliction of duty on 19980805 and failure to obey order 19980806.
	Awarded – RIR (E-3), susp 6 months; 3 days Bread and Water.

19980928:	Retention Warning for dereliction of duty and failure to obey lawful order.

19981030:	Suspension of RIR awarded at NJP of 19980914 vacated this date due to continued misconduct.

19981030:	NJP -- Viol UCMJ Art. 121 - Larceny.
	Awarded - FOP ($629.00) for (2 months); Restr for (14 days); Extra duties (14 days).

19990408:	NJP -- Viol UCMJ Art. 91 – Failure to obey order from PO1.
	Awarded – RIR (E-2); Restr for (30 days); Extra duties (30 days).

Discharge Process

Date Notified:					19990408
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:		Undated
Rights Elected at Notification:
	Consult with Counsel			ELECTED
	Obtain Copies of Documents		NO ELECTION INDICATED
	Submit Statement(s) (date)			NO ELECTION INDICATED
	Administrative Board			NO ELECTION INDICATED

19980610:	Applicant UA for 2 hours.

Administrative Board Date:	19990617
              Findings, by preponderance of the evidence:	BY UNANIMOUS VOTE MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE SUPPORTED.
	BY UNANIMOUS VOTE MISCONDUCT -  
	PATTERN OF MISCONDUCTSUPPORTED.
              Recommendation on Separation: 	BY UNANIMOUS VOTE SEPARATE
              Recommendation on Characterization:	BY A VOTE OF 2-1 UNDER OTHER THAN HONORABLE CONDITIONS

19980721:	Applicant UA for 1 hour.

Commanding Officer Recommendation (date):	NOT FOUND IN RECORD 
Separation Authority (date):	COMCRUDESGRU ONE (19990929)
              Reason for discharge directed:	MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE
              Characterization directed:	UNDER OTHER THAN HONORABLE CONDITIONS
Date Applicant Discharged:	19991005

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) ☒ Qualification and training certificates; resume 

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 Dec 97 until 29 March 2000, 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, Articles 91, Insubordinate conduct toward warrant officer; noncommissioned officer, or petty officer; 92, Failure to obey order or regulation; and 121, Larceny.

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