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

Docket No. ND07-01012

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

ex-SR, USN
ND07-01012

Current Discharge and Applicant’s Request

Application Received:  20070723 				Characterization Received: OTHER THAN HONORABLE
Narrative Reason:  MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE 	Authority:  MILPERSMAN 3630600

Applicant’s Request:	Characterization change to:  HONORABLE
			Narrative Reason change to: CONVENIENCE OF THE GOVERNMENT
Applicant’s Issues:	1. Young and immature; minor misconduct did not warrant discharge
			2. Improperly counseled on rights
			3. 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:  20080110	DOCUMENTARY REVIEW	Location:  Washington D.C	 Representation:  NONE

Discussion

Issue 1 (Propriety/Equity).  The Applicant listed a number of purported issues (2 – 8) which the Board determined were not separate issues but separate factors offered in support of the issue that the Applicant’s misconduct in light of its nature, and his youth and immaturity, did not warrant discharge.  The Applicant’s service was marred by a nonjudicial punishment and summary court-martial for violations of the Uniform Code of Military Justice, Articles 86, 87 and 112a.  Violation of each of these Articles is considered a serious offense for which a punitive discharge is authorized upon conviction at special or general court-martial.  Violation of Article 112a alone usually results in discharge characterized as under other than honorable conditions.  Each of the Applicant’s other serious offenses also warrant discharge.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  To the contrary, the Applicant’s record indicates that he actively sought means to avoid his duty.  The summary of service clearly documents that misconduct due commission of a serious offense was the reason the Applicant was discharged.  The Applicant could have also been processed for misconduct due to drug abuse.  No change to his narrative reason for discharge is warranted.  Further, the Applicant’s misconduct was serious, reflected 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 (Propriety).  The Applicant contends that he was improperly notified of his rights in the administrative separation process.  The government is entitled to a presumption of regularity in the conduct of its affairs.  The Notification to the Applicant, and his Acknowledgement, appear correct on their face, and the Applicant’s assertion is not sufficient in itself to overcome the presumption of regularity.  The Board also had little doubt, in light of his extended serious misconduct, that even if the Applicant had fully exercised his rights the outcome would likely have been the same.

Issue 3 (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 to mitigate the conduct which precipitated the 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 the discharge was proper and equitable.

Administrative Corrections to the Applicant’s D	D 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”
	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:
Inactive: USNR (DEP)	19911108 - 19920401  COG		Active:   NONE	      -        ?
Period of Service Under Review:
Date of Enlistment: 19920402			Years Contracted:  4; Extension:  NONE.	Date of Discharge:  19930413
Length of Service:  01  Yrs  00  Mths  12  Dys			Lost Time:  Days UA:  52  Days Confined:  22
Education Level:  12	Age at Enlistment:  17 (PARENTAL CONSENT)	AFQT:  58	Highest Rank/Rate:  SR
Evaluation marks (# of occasions):	Performance:  2.6(3)	Behavior:  2.5(3)	 	OTA:  2.87 
Awards and Decorations (per DD 214):  NDSM, BATTLE "E"

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

19920717:	Medical Record:  Reason for visit:  Referred for mental health evaluation, “wants out of the Navy.”  Regrets enlisting, unhappy, homesick—“I hate the discipline, rules and regulations and the way I’m treated.”
	Diagnosis:  I: Occupational problems; II: Immature personality traits; III: No known physical disorder
	Recommendation:  Not mentally ill, responsible for actions; No psychiatric objections to appropriate command administrative actions; No psychiatric treatment required.

19920902:	To unauthorized absence.

19921116:	From unauthorized absence (44 days/surrendered).

19921214:	SCM -- Viol UCMJ Art. 86 – Unauthorized absence from 19920902 – 19921116.
	Awarded -  FOP ($518.00) for (1 months); Confinement (24 days); Conf B&W (3 days).

19930105:	From confinement to full duty.

19930111:	Retention Warning for Summary Court-Martial for violation of Article 86, UCMJ.

19930302:	To unauthorized absence.  Missed ship’s movement.

19930310:	From unauthorized absence (8 days/surrendered).

19930818:	NJP -- Viol UCMJ Art. 86 – Unauthorized absence 19930302 – 19930310; Art 87 – 19930302 missed ship’s movement through design; Art 112a – 19930310 wrongfully use marijuana.
	Awarded - FOP ($407.00) for (2 months); Restr for (45 days); Extra duties (45 days).

19930331:	Medical Record:  Reason for visit:  Drug/alcohol screening
	Diagnosis:  Drug abuse; no alcohol abuse/dependency; no drug dependency
	Recommendation:  No treatment required.

Discharge Process

Date Notified:					19930322
Reason for Discharge:	MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE
Least Favorable Characterization:	UNDER OTHER THAN HONORABLE CONDITIONS

Date Applicant Responded to Notification:		19930322 (Applicant did not object to separation)
Rights Elected at Notification:
	Consult with Counsel			WAIVED
	Obtain Copies of Documents		WAIVED
	Submit Statement(s) (date)			WAIVED 
	Administrative Board			WAIVED

Commanding Officer Recommendation (date):	UNDER OTHER THAN HONORABLE CONDITIONS (19930324)
Separation Authority (date):	BUPERS (19930407)
              Reason for discharge directed:	MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE
              Characterization directed:	UNDER OTHER THAN HONORABLE CONDITIONS
Date Applicant Discharged:	19930413

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, Articles 86, Absence without leave (for more than 30 days); 87, Missing movement; 112a, Wrongful use, possession, etc., of controlled substances. 

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