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

Docket No. ND07-01111

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

ex-MSSN, USN
ND07-01111

Current Discharge and Applicant’s Request

Application Received:  20070809	Characterization Received:  UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason:  MISCONDUCT 	Authority:  MILPERSMAN 3630600

Applicant’s Request:	Characterization change to:  GENERAL (UNDER HONORABLE CONDITIONS)
			Narrative Reason change to: NONE REQUESTED
Applicant’s Issues:	1. Punished at NJP/Family problems
			2.  Post service

Decision

By a vote of 4-1 the Characterization shall remain UNDER OTHER THAN HONORABLE CONDITIONS.
By a vote of 4-1 the Narrative Reason shall remain MISCONDUCT.

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

Discussion

Issue 1 (Equity).  The Applicant contends that his discharge was improper because at the time of separation he had gone to a formal captain’s mast and was starting to correct some of his family problems that had resulted in him going UA.  The imposition of punishment at captain’s mast does not bar one’s separation authority from taking administrative action to discharge a member from the military, if the requirements of MILPERSMAN 1910-010 and other pertinent sections are met.  The Board found that the Applicant's other than honorable discharge was proper and equitable.  The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted.  There is no evidence of impropriety, inequity or procedural irregularities in the Applicant's discharge.  The Applicant was afforded the appropriate due process during the processing of his case.  The record reflects that on 19960105, Special Courts-Martial charges were preferred against the Applicant for VUCMJ Art. 121, Larceny of a credit card and $1200 of US currency.  The Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial after consulting with counsel, who fully advised him of the implications of his request.  The Applicant stated he understood the elements of the offenses with which he was charged, and voluntarily admitted that he committed acts of misconduct that rendered him triable by military court-martial.  Other aggravating factors noted by the Board were the Applicant’s two periods of unauthorized absences between 19940715 and 19940906, which totaled 32 days.  

Issue 2 (Equity). The Board advises the Applicant that 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.  Verifiable proof of post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  Evidence of continuing educational pursuits, employment records, documentation of community service, and certification of non-involvement with civil authorities are examples of verifiable documentation that should be provided to receive consideration for relief based on post-service conduct.  The Board acknowledges the Applicant's involvement in community services, and other post service achievements as evidenced by the documents submitted, but, at this time, the Applicant has not provided sufficient documentation for the Board to consider an upgrade.  

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:
Inactive: USNR (DEP)	19930331 - 19930614  COG		Active:   NONE	
Period of Service Under Review:
Date of Enlistment: 19930615		Years Contracted:  4; Extension:  12 MONTHS	Date of Discharge:  19960208
Length of Service:  02  Yrs  06  Mths  09  Dys	Lost Time:  Days UA:  32  Days Confined:  NONE
Education Level:  12	Age at Enlistment:  18	AFQT:  64	Highest Rank/Rate:  MS3
Evaluation marks (# of occasions):	Performance:  4.0(1)	Behavior:  4.0(1)	 	OTA:  3.80 
Awards and Decorations (per DD 214):  SSDR, NDSM, SASM

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

19940715:	Applicant to unauthorized absence at 0745.

19940812:	Applicant from unauthorized absence at 1330 (28 days/returned).

19940902:	Applicant to unauthorized absence at 1630.

19940906:	Applicant from unauthorized absence at 1500 (4 days/returned).

Discharge Process

Charge(s) Preferred:  19960105
Charge(s) and Specification(s):
	Article 121: (1 Spec) Steal 2 credit cards, (7 Specs) Steal United States currency of a value of $1200.00 the property of Central Fidelity Bank, Richmond, Virginia.
	
Date Applicant Submitted SILT request:		19960122
	Consulted with or Waived Counsel:		YES
	Acknowledged Understanding Elements:	YES
	Acknowledged Guilt to:			Article(s) 121 
		BCD/DD authorized for offense(s)	NO
	Acknowledged Consequences of OTH:	YES
	Type of Characterization Requested:	UNDER OTHER THAN HONORABLE CONDITIONS

Commanding Officer Recommendation (date):	APPROVE,  UNDER OTHER THAN HONORABLE CONDITIONS (19960125)
Separation Authority (date):			COMMANDER SUBMARINE FORCE, U.S. ATLANTIC FLEET (19960129)
	Reason for Discharge directed:		IN LIEU OF TRIAL BY COURT-MARTIAL
	Characterization directed:			UNDER OTHER THAN HONORABLE CONDITIONS
Date Applicant Discharged:			19960208

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) ☒ 10^TH Annual Safety Award & Auction Article, Certificate of Appreciation, 2006 Cheney Brothers Excellence Award, Reciept from T_ F. W_, funeral home.

Administrative Corrections to the Applicant’s DD 214

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

	Block 25, Separation Authority, should read: “MILPERSMAN 3630650”
	Block 26, Separation Code, should read: “KFS”
	Block 28, Narrative Reason for Separation, should read: “in lieu of trial  by court martial”

The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate. 

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective 22 July 1994 until 2 October 1996, Article 3630650, PROCEDURES FOR PROCESSING ENLISTED PERSONNEL FOR SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

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