Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: donald.e.brown1
Company: NCPB

Docket No. ND07-01077

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

ex-SKSN, USN
ND07-01077

Current Discharge and Applicant’s Request

Application Received:  20070801 	Characterization Received:  GENERAL (UNDER HONORABLE CONDITIONS)
Narrative Reason:  PATTERN OF MISCONDUCT 	Authority:  MILPERSMAN 1910-140

Applicant’s Request:	Characterization change to:  HONORABLE
			Narrative Reason change: NONE REQUESTED

Applicant’s Issues:	1.  No issues submitted

Decision

By a vote of 5-0 the Characterization shall remain GENERAL (UNDER HONORABLE CONDITIONS).
By a vote of 5-0 the Narrative Reason shall remain PATTERN OF MISCONDUCT.

Date:  20080117    	DOCUMENTARY REVIEW	Location:  Washington D.C	 Representation:  NONE

Discussion

For the information of the Applicant, regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the naval service.  Based upon the record, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy.  A general (under honorable conditions) characterization of service is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record.  The Applicant’s service was marred by a retention warning and two nonjudicial punishments for violations of UCMJ Articles 86 (unauthorized absence) and 107 (false official statement).  These Nonjudicial punishments form the basis for the Applicants administrative discharge based on a pattern of misconduct which is defined as two or more nonjudicial punishments during the same enlistment.  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 with the U.S. Navy and falls far short of that required for an upgrade in his characterization of 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.

Summary of Service

Prior Service:
Inactive: USNR (DEP) 19980127 - 19980204  COG		
Period of Service Under Review:
Date of Enlistment: 19980205		Years Contracted:  4; Extension:  16 Months	 (EAOS 20030604)	
Date of Discharge:  20030602       
Length of Service:  05 Yrs 03 Mths 24 Dys	Lost Time:  03 Days
Education Level:  12	Age at Enlistment:  20	AFQT:  38   	Highest Rank/Rate:  SK3
Evaluation marks (# of occasions):	Performance:  2.0 (2)	Behavior:  1.0 (2)	 	OTA:  1.67 (2)        
Awards and Decorations (per DD 214):  Navy Good Conduct (20050201), AFEM (2), NUC, Navy “E” Ribbon, SSDR (3), Navy Marksmanship Medal

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

19990701:	Retention Warning failure to pay just debits.

20000305:	Applicant completed alcohol dependence rehabilitation at SARD, NMC San Diego.

20020424:	NJP – Violations of UCMJ Article 86 (unauthorized absence) and Article 107 (false official statement).
	Awarded - FOP ($200/month for two months); RIR (E-3, suspended for six months); Restr for (30 days, 26 days suspended for six months); Extra duties (30 days, 26 days suspended for six months).

20020621:	Applicant reported for duty aboard NMCB Five

20021209:	Applicant to unauthorized absence at 0530 from Guantanamo Bay Cuba (failure to return from leave).

20021213:	Applicant returned from unauthorized absence at 1420 (3 days)

20030522: 	NJP – Violation of UCMJ Article 86 (unauthorized absence, 20021209 – 20021213)
	Awarded - FOP ($750/month for two months); RIR (E-3); Restr (45 days); Extra duties (45 days).

20030522:	Commanding Officer, U. S. Naval Mobile Construction Battalion Five informed Commander, Navy Personnel Command of the Applicant’s discharge by reason of misconduct by the commission of a serious offense and misconduct by a pattern of misconduct with a service characterization of general under honorable conditions.  Commanding Officer comments: “I strongly believe that SKSN M_ (Applicant) is either incapable of adhering to the rules and regulations of the command and the Navy, or he is simply unwilling to conduct himself in a manner conducive to good order and discipline.”

20030602:	Applicant discharged.

Discharge Process

Date Notified:					20030527
Reason for Discharge:	MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE
	MISCONDUCT - PATTERN OF MISCONDUCT
Least Favorable Characterization:	GENERAL (UNDER HONORABLE CONDITIONS)

Date Applicant Responded to Notification:		undated     
Rights Elected at Notification:
	Consult with Counsel			WAIVED
	Obtain Copies of Documents		WAIVED
	Submit Statement(s) (date)			WAIVED 
	GCMCA review				WAIVED

Separation Authority (date):	Commanding Officer, U. S. Naval Mobile Construction Battalion Five (20030522)
              Reason for discharge directed:	MISCONDUCT - PATTERN OF MISCONDUCT
              Characterization directed:	GENERAL (UNDER HONORABLE CONDITIONS)
Date Applicant Discharged:	20030602     

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), re-issued October 2002, effective 22 Aug 2002 until 25 April 2005, Article 1910-140 (formerly 3630600), 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.

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 107.

 

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