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

Docket No. ND07-01176

ex-SR, USN

Current Discharge and Applicant’s Request

Application Received:  20070828
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MILPERSMAN 3630600 (misconduct)

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 

Summary of Service

Prior Service:
Inactive: USNR (DEP)	19890825 - 19890828  		Active:   
Period of Service Under Review:
Date of Enlistment: 19890829	Period of enlistment:   Years   Extension	Date of Discharge:  19921009
Length of Service:    Yrs    Mths  15  Dys	Education Level:  	Age at Enlistment:  	AFQT:  53
Highest Rank/Rate:  SA	Evaluation marks:  Performance: 3.2(1)	Behavior: 2.8(1)	OTA:  3.20
Awards and Decorations (per DD 214):  

Periods of UA:  19910301-19910312 (11 DAYS); 19910419-19910507 (18 DAYS); 19910703-19910726 (23 DAYS);                       
                          19920327-19920330 (03 DAYS); 19920427-19920428 (01 DAY);   19920817-19920824 (07 DAYS)

NJPs:	
	19900314:  Art(s) 134 (Drinking).  	         		        Awarded -                                Susp -  
19900927:  Art(s) 134 (Drinking/drunk/disorderly), 
                    2 specifications.  	                                      Awarded -CC                                       Susp -  
19920410:  Art(s) 86 (UA), 
                    2 specifications.  	                                      Awarded - ,                       Susp - 
	19920520:  Art(s) 86, 
                                  6 specifications.  	                                      Awarded - , , ,     Susp - 
19920827:  Art(s) 86  		                                      Awarded - 		            Susp - 

Retention Warnings:  .
	19900314:  For pattern of misconduct evidenced by violation of the UCMJ, Article 134: Drinking underage.
19900504:  For excessive drinking, with subsequent loss of control of your temper.
19920529:  For financial indebtedness.

Types of Documents Submitted

Related to Military Service:	DD 214:  	Service and/or Medical Record:  		Other Records:  

Related to Post-Service Period:	
	Employment:			Finances:			Education/Training:	
	Health/Medical Records:		Substance Abuse:			Criminal Records:	
	Family/Personal Status:		Community Service:		References:		
	
Additional Statements From Applicant:  		From Representation:  		From Member of Congress:  
Other Documentation (Describe)  Statement in Support of Claim, News Article, Copy of ATM Card, Illegible ID,  

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

Applicant’s Issues

1.  Family Problems.
2.  Treated Unfairly by Command.
3   Post Service.

Decision

Date:  20080509		Location:  Washington D.C	 Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  MISCONDUCT-PATTERN OF MISCONDUCT.

Discussion

Issues 1 and 2 (Equity): The Applicant contends his “Under Other Than Honorable” characterization of service was too harsh due to the hardship his family was facing as a result of losing all of their property due to California wild fires; he also states he was treated unfairly by his command.  

During Board reviews the government is presumed to conduct its affairs with regularity unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  When a member’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  An “Under Other Than Honorable” 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 three retention warnings and five non-judicial punishments for violations of the Uniform Code of Military Justice, Articles: 86 (Unauthorized absence), 9 specifications; and 134 (Underage drinking and drunk/disorderly conduct), 3 specifications.  These non-judicial punishments form the basis for the Applicants administrative discharge based on a pattern of misconduct, which is defined as two or more punishments during the same enlistment.  

The Applicant was notified of his impending discharge and of his rights to consult with legal counsel and to be heard before an Administrative discharge board.  The Applicant waived all rights and did not object to his discharge or characterization of service.  After assuring compliance with MILPERSMAN 3630600, the separation authority directed the Applicant’s discharge by reason of misconduct, due to a pattern of misconduct, with a service characterization of “Under Other Than Honorable”.  The Board could not find in the record, nor did the Applicant provide, documentation supporting the claim the command treated the Applicant unfairly.  The Applicant’s discharge was consistent with the standards of Naval discipline and discharge proceedings.   As such, the Board determined an upgrade was not warranted.

Issue 3 (Equity):  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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 the civilian sector subsequent to leaving the service.  Outstanding post-service conduct, 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, is considered.  The Applicant provided no documentation of post-service accomplishments.  The Applicant's efforts need to be more encompassing than those provided.  For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, evidence of drug free existence, and certification of non-involvement with civil authorities.  The Board determined the Applicant did not provide adequate documentation to support the claim his post service conduct should be a reason for an upgrade in the characterization of discharge. 

After a thorough review of the available evidence, to include the Applicant’s Summary of Service,   Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found 

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C, effective 15 August 1991 until 4 March 1993), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - A 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

Key:	NFIR - Not Found In Record 	UA – Unauthorized absence	NJP – Nonjudicial punishment	SCM – Summary court-martial
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties
	CONF – Confinement		B&W – Confinement on bread and water			CC - Civilian conviction

Key:	NFIR - Not Found In Record 	UA – Unauthorized absence	NJP – Nonjudicial punishment	SCM – Summary court-martial	
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties 
	CONF – Confinement		B&W – Confinement on bread and water