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

Docket No. ND08-00173

ex-AA, USN

Current Discharge and Applicant’s Request

Application Received:  20071115
Characterization of Service Received:  
Narrative Reason for Discharge:  SEPARATION 
Authority for Discharge:  MILPERSMAN 3630650 (IN LIEU OF TRIAL BY COURT MARTIAL)

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

Summary of Service

Prior Service:
Inactive: USNR (DEP)	19920325 - 19920608  		Active:   

Period of Service Under Review:
Date of Enlistment: 19920609	Period of Enlistment:   Years   Extension	Date of Discharge:  19940304
Length of Service:    Yrs    Mths  26  Dys	Education Level:  	Age at Enlistment:  
Highest Rank/Rate:  AA     Evaluation marks:  Performance: 3.4(1)     Behavior: 3.2(1)	OTA:  3.40  AFQT:  88
Awards and Decorations (per DD 214):  

Periods of UA:  19931215-19940110 (27 days)
		
NJPs:	
	19930316:  Article 92 (Disobey a lawful order).
		     Awarded -  .  Susp - .
	19930810:  Article 121 (Larceny and wrongful appropriation),
                                 Article 134 (Disorderly conduct).
		     Awarded -  .  Susp - .

Applicant requested for OTH discharge in lieu of court martial based on the following violations of the Uniform Code of Military Justice (UCMJ):

Article 89 - Disrespect toward Lt JAGC by saying “I don’t have to obey the MAA or you”.
Article 90 - Disobeying a LT’s order to be quiet & obey the MAA.
                 - Disobeying an order to provide a urine sample.
Article 92 - Failure to obey a lawful order to report to muster daily.
                 - Failed to obey an order to be quiet.
Article 134 - Wrongful possession of alcohol.
                   - Drunk & disorderly conduct.
                   - Wrongfully communicated to MASN a threat to injure, “ I’m going to kick your ass out in town  …punk that 
                      wont meet me after work.”

Types of Documents Submitted/reviewed

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:  

-	Letter from Texas Representative A.G.,  U.S. House of Representatives dated 6 November 2007
 
Other Documentation (Describe) :  Memorandum from ARNG to applicant dated 30 April 2007
			                  Waiver request and approval dated 30 April 2007

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

Applicant’s Issues

1.  Reenlistment opportunity. 
2.  Wrongfully denied leave to visit his ill father.
3.  Post service conduct.

Decision

Date: 20080627		Location:  Washington D.C	 Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  SEPARATION .

Discussion
: The Applicant is seeking to “redeem himself from past mistakes” by applying for enlisting in the Texas Army National Guard.  He has submitted a copy of his request for a waiver to enter the Texas National Guard and the reply from Texas Military Forces of 30 April 2007.    which the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum, for additional information on .

 ():  .  The Applicant contends his discharge should be upgraded because he was denied leave to visit his father who had been diagnosed with cancer.  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.  When granting or denying leave, the command must take into consideration the mission and needs of the Navy.  The Board found no indication from the service record or documentation provided by the Applicant he was denied leave while on active duty to be with his dying father.  However, the Applicant’s record reflects he was awarded nonjudicial punishment on 2 separate occasions for violations of the Uniform Code of Military Justice (UCMJ), Article 92 (Disobeying a lawful order) and Article 121 (Larceny and wrongful appropriation).  Additionally, Special Courts-Martial charges were preferred against the Applicant for violations of the UCMJ, which included: Article 89 (Disrespect toward a superior commissioned officer); Article 90 (Willfully disobeying a superior commissioned officer); Article 92 (Failure to obey a lawful order); Article 117 (Wrongful use of provoking words); and Article 134 (Wrongfully possessing alcoholic beverages while underage).  

The Applicant requested a discharge for the good of the service to escape trial by court-martial for the above offenses.  In the request for discharge, the Applicant noted his counsel had fully explained the elements of the offenses for which he was charged and acknowledged that he was guilty of the offenses.  He further certified a complete understanding of the negative consequences of his actions and that the characterization of service would be “Under Other Than Honorable Conditions”.  The record clearly reflects his disregard for military discipline and demonstrated he was unfit for further military service.  The evidence of record does not demonstrate the command wrongfully denied him leave or that the Applicant was not responsible for his conduct and should not be held accountable for his actions.  Therefore, the Board determined an upgrade would be inappropriate. 

Issue 3 (Equity):  RELIEF NOT WARRANTED.   As matters for post service consideration the Applicant contends he is now a father of three, a business owner and community youth leader who constantly preaches the message regarding the value of redemption from past mistakes.  For the edification of the Applicant 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.  However, 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 any 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 record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that should have been provided to receive consideration for relief, based on post-service conduct.  The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge as each discharge is reviewed by the 

Board on a case by case basis to determine if post service conduct mitigates the reason for the characterization of discharge.  The Applicant’s statements alone, without documented evidence, concerning post-service conduct were not found to mitigate the misconduct which precipitated the discharge.  The Board determined an upgrade would be inappropriate. 

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), Change 5, effective 5 March 1993 until 21 July 1994, 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.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications.

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