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

Docket No. ND08-00992

ex-SR, USN

Current Discharge and Applicant’s Request

Application Received:  20080415
Characterization of Service Received:  UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge:  PATTERN OF MISCONDUCT WITH MILITARY AUTHORITIES
Authority for Discharge:  MILPERSMAN 1910-140 (PATTERN OF MISCONDUCT)

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

Summary of Service

Prior Service:
Inactive: USNR (DEP)	19990902 - 19990922  COG		Active:   NONE

Period of Service Under Review:
Date of Enlistment: 19990923	Period of Enlistment:  4 Years  12 MONTHS Extension	Date of Discharge:  20010406
Length of Service:  01  Yrs  04  Mths  13  Dys	Education Level:  12	Age at Enlistment:  18	AFQT:  33
Highest Rank/Rate:  SN	  Evaluation Marks:  Performance: 2.0(3)	Behavior: 1.5(4)	OTA:  1.83
Awards and Decorations (per DD 214): SSDR AFEM 

Periods of UA:  Unable to determine

NJPs:	3
20000811:  Article 113 (Misbehavior of sentinel), 2 specifications,
		     Article 92 (Disobeying a lawful order),
	         Article 86 (Unauthorized absence from place of duty).
                   Awarded - RESTR EPD RIR FOP.  Susp - FOP.

20000927:  Article 107 (False official statement),
	        Article 86 (Unauthorized absence).
                   Awarded – Correctional Custody Unit for 30 days.  Susp - NONE.

20010223:  Article 92 (Violation of an other lawful order),
		     Article 86 (Unauthorized absence).
                   Awarded - RESTR EPD FOP.  Susp - NONE.

Retention Warnings:  2.
2000812:  For violation of UCMJ, Article 113, 2 specifications: On or about 20000726, sleeping on watch while   
                 receiving special pay; leaving post before being regularly relieved.  Violation of UCMJ Article 92:    
                 Disobeying a lawful order.  Violation of UCMJ Article 86: On or about 20000802, Unauthorized absence.

20000928:  For violation of UCMJ Article 107 and Article 86.
 
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:  ☐
Other Documentation (Describe) ☐

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

Applicant’s Issues

1. None submitted.
Decision

Date:  20080814	DOCUMENTARY REVIEW	Location:  Washington D.C	 Representation:  NONE

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

Discussion

Issue 1: Equity and Propriety:  RELIEF NOT WARRANTED.  The Applicant has requested an upgrade in his discharge from an “Under Other Than Honorable Conditions” to an “Honorable” conditions discharge but has presented no written justification or documentation for the Board’s consideration.  As no issues were submitted by the Applicant, the Board conducted a general review of the discharge and discharge process.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  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.  The Applicant’s record of service was marred by 2 retention warnings and 3 nonjudicial punishments for violations of the Uniform Code of Military Justice, Article 86, 3 specifications; Article 92, 2 specifications; Article 107; and Article 113.   These violations are serious in nature and could have resulted in a punitive discharge and confinement if adjudicated by a special or general court martial.  The command did not pursue a court martial but opted instead for an administrative discharge.  After a review of the discharge process or the events which lead up to the discharge the Board discovered no impropriety.  

For the edification of the Applicant, 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.  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 civilian life subsequent to leaving Naval service.  Examples of documentation that should be provided to the Board for consideration in an upgrade review include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  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.  After a complete review of the entire record the Board determined the discharge was appropriate in light of the nature, frequency and seriousness of the Applicant’s misconduct, and that there was no evidence of post-service conduct to convince the Board an upgrade to honorable was appropriate at this time.  Therefore, relief is denied.

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

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 December 1997 until
21 August 2002, Article 1910-140, 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.

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 or is referred to a court martial 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 other medical related reasons.  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 special 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.  The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

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