ex-OS2, USN

Current Discharge and Applicant’s Request

Application Received:  20070920 
Characterization of Service Received:  
Narrative Reason for Discharge:  MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE
Authority for Discharge:  MILPERSMAN 1910-142

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

Summary of Service

Prior Service:
Inactive: USNR (DEP) 19990505 - 19990727  		Active:   19990728 - 20030727 HON
Period of Service Under Review:
Date of Enlistment: 20031124		Period of enlistment:  4 Years + 9 month extension	Date of Discharge:  20061004
Length of Service:   Yrs  Mths 11 Dys	Education Level:  	Age at Enlistment:  22	AFQT:  not available 
Highest Rank/Rate:  OS2	Evaluation marks:  Performance: 3.5 (4)	Behavior:  3.5 (4)		OTA:  3.57 (4)  
Awards and Decorations (per DD 214): , , ,  (3), , , Coast Guard Special Operations Service Medal, and ESWS

NJP:	20040610:  Articles 86 (unauthorized absence) and 92 (failure to obey).  Awarded – RIR, RESTR, EPD, FOP; Susp - RIR
	20060815:  Articles 86 (unauthorized absence) and 87 (missing movement).  Awarded - , , , and  Susp - 
	20060913:  Article 86 (unauthorized absence).  Awarded – RESTR, FOP, and RIR; Susp – FOP and RIR

Discharge Warning:  20040610 for violations of UCMJ Articles 86 and 92.

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) 

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

Applicant’s Issues

1.  The commission of a serious offense was failure to fulfill orders, I was not qualified for the orders given and brought this to the attention of my chain of command.  

Decision

Date:  20080207		Location:  Washington D.C	 Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

Discussion

Issue 1 ():  The Applicant contends that his discharge was the result of his failure to full fill orders which he was not qualified to execute because of previous NJP and anger management counseling.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his claim.  There is no evidence in the record, nor has the Applicant produced any evidence, to support these contentions.  Even if the Applicant could document his claim this would neither amount to a justification nor to a defense for the Applicant’s own misconduct.  Each violation of UCMJ Articles 87 and 92 constitute the “commission of a serious offense” which forms the basis for the Applicant’s discharge and is punishable by a dishonorable discharge and up to two years of imprisonment for each specification.  The record supports the commission of a serious offense for which the Applicant was administratively discharged. That separation was appropriate, and a under other than honorable conditions characterization of service is warranted.  The Board found the Applicant’s discharge proper and equitable.  

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 April 2005 until Present, Article 1910-142, SEPARATION 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 violations of UCMJ Articles 87 and 92.

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