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

Docket No. ND07-00956

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

ex-ENFA, USN
ND07-00956

Current Discharge and Applicant’s Request

Application Received:  20070705	   Characterization Received:  OTHER THAN HONORABLE CONDITIONS
Narrative Reason:  PATTERN OF MISCONDUCT  	Authority:  MILPERSMAN 1910-140

Applicant’s Request:	Characterization change to:  HONORABLE
			Narrative Reason change to: NONE REQUESTED
Applicant’s Issues:	1. Seeking reenlistment
			2. Discharged 2 months prior to end of obligated 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 PATTERN OF MISCONDUCT.

Date:  20080110		DOCUMENTARY REVIEW	Location:  Washington D.C	 Representation:  NONE

Discussion

Issue 1:  This is an Issue 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 Reenlistment/RE-codes.

Issue 2 (Equity).  The Applicant contends that an upgrade is warranted because he was discharged 2 months prior to completing his enlistment.  Pursuant to MILPERSMAN 1910-010 a member may be administratively separated from the service prior to the expiration of their current enlistment for failure to meet the required standards of performance or discipline.  The Applicant was separated for a pattern of misconduct as authorized under MILPERSMAN 1910-140, which states that a member may be separated when, during their current enlistment, they have at least two non-judicial punishments (NJP), court-martials, civil convictions or a combination thereof and a page 13 retention warning.  The record reflects that the member went to non-judicial punishment on 20030503, 20040719, and 20060414, for VUMCJ, Art. 92, Orders violations, Art. 107, False official statement, Art. 111, Drunk and disorderly conduct, and Art. 134, False unauthorized pass offenses.  The Board, however, could not find a page 13 warning letter or administrative separation package in the record.  The absence of documentation, in itself, does not establish impropriety as the NDRB presumes regularity in the conduct of governmental affairs.  As such, the Board presumed that the Applicant was afforded the appropriate warning and due process during the processing of his case. After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable.  

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.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

	Block 24, Character of Service, should read: “UNDER OTHER THAN HONORABLE CONDITIONS”
	
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)	20020125 - 20020702  COG		Active:   NONE	
Period of Service Under Review:
Date of Enlistment: 20020703	Years Contracted:  4; Extension:  NONE.	Date of Discharge:  20060505
Length of Service:  03  Yrs  10  Mths  03  Dys	Lost Time:  Days UA:  NONE  Days Confined:  NONE
Education Level:  11	Age at Enlistment:  18	AFQT:  33	Highest Rank/Rate:  ENFN
Evaluation marks (# of occasions):	Performance:  2.5(2)	Behavior:  1.0(2)	 	OTA:  2.08 
Awards and Decorations (per DD 214):  NDSM, SSDR(3), NMCOSR, ICM, NER(2), CGUC, NMCAM

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

20030503:	NJP -- Viol UCMJ Art. 92 – (3 Specs), underage drinking, violation of buddy policy, returning late from liberty.
	Awarded - FOP ($575.40) for (2 months); RIR (E-1); Restr for (60 days).

20040203:	Applicant submitted request chit through chain of command for reinstatement to pay grade E2.  Approved by Commanding Officer, USS O’BRIEN.

20040719:	NJP -- Viol UCMJ Art. 92 – Failure to obey a lawful order, viol UCMJ Art. 107 – False official statement.
	Awarded - FOP ($587.00) for (1 month); RIR (E-1); Restr for (24 days).

20060414:	NJP -- Viol UCMJ Art. 92 – Failure to obey order or regulation, viol UCMJ Art. 111 – Drunken of reckless operation of a vehicle, aircraft, or vessel, viol UCMJ Art. 134 – False or unauthorized pass offenses.
	Awarded - FOP ($714.00) for (2 months); RIR (E-2); Restr for (45 days); Extra duties (4 days).

Discharge Process

Date Notified:					NOT FOUND IN RECORD
Reason for Discharge:	MISCONDUCT - PATTERN OF MISCONDUCT
	
Least Favorable Characterization:	NOT FOUND IN RECORD

Date Applicant Responded to Notification:		NOT FOUND IN RECORD 
Rights Elected at Notification:
	Consult with Counsel			NOT FOUND IN RECORD
	Obtain Copies of Documents		NOT FOUND IN RECORD
	Submit Statement(s) (date)			NOT FOUND IN RECORD
	Administrative Board			NOT FOUND IN RECORD
	GCMCA review				NOT FOUND IN RECORD

Commanding Officer Recommendation (date):	NOT FOUND IN RECORD
Separation Authority (date):	NOT FOUND IN RECORD
              Reason for discharge directed:	NOT FOUND IN RECORD
              Characterization directed:	NOT FOUND IN RECORD
Date Applicant Discharged:	20060505

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 11, effective 26 April 2005 until Present, Article 1910-140, 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