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

Docket No. ND08-01173

ex-FCSN, USN

Current Discharge and Applicant’s Request

Application Received: 20080506
Characterization of Service Received:  UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge: MISCONDUCT COMMISSION OF A SERIOUS OFFENSE
Authority for Discharge: MILPERSMAN 3630600

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

Summary of Service

Prior Service:
Inactive: USNR (DEP) 19841128 - 19850324  COG		Active: USN  19850325 - 19910523  HON

Period of Service Under Review:
Date of Enlistment: 19910524	    Period of Enlistment: 3 Years  NO Extension           Date of Discharge: 19930430
Length of Service: 01  Years  11  Months  06  Days	Education Level: 12 1/2	Age at Enlistment: 26	AFQT: 82
Highest Rank/Rate: FC3	Evaluation Marks: Performance: 3.6 (5)	Behavior: 3.2 (5)	OTA:  3.52
Awards and Decorations (per DD 214): SSDR (2) CGUC CGMUC GCA CAR NDSM

NJPs: 1
19930113: Article 92 (Failure to obey a lawful order),
                  Article 128 (Assault), 2 specifications.
                  Awarded: RESTR.  Suspended: NONE.

Retention Warnings: 3
19920903: For Naval Medical Clinic, Philadelphia investigation and letter dates 22 JUL 92.
19921210: For an established pattern of failure to pay just debts.
19930311: For violation of UCMJ Article 134 and the Navy’s policy of Zero Tolerance of Sexual Harassment on 11 
                  February ’93, in that you made an unprofessional statement of a sexual nature to another Male Pettty 
                  Officer in a loud voice during a command gathering.  The statement was graphic and was made in close 
                  proximity to several female members of the command.

Administrative Corrections to the Applicant’s DD 214

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

	Block 12a, Date Entered AD This Period, should read: “19850325”
	Block 18, Remarks, should contain the statement: “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 
                               19850325 UNTIL 19910523 ”
	
The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate.

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): ☐

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 5, effective 5 March 1993 until 21 Jul y 1994, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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 violation of the UCMJ, Article 92, Failure to obey order or regulation and Article 128, Assault.

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

Applicant’s Issues

1.  A General discharge was recommended by the commanding officer.

Decision

Date:  20080911           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 MISCONDUCT (COMMISSION OF A SERIOUS OFFENSE).

Discussion

Issue 1: (Equity)  RELIEF NOT WARRANTED.  The Applicant contends his discharge should be upgraded to honorable because a “General (Under Honorable Conditions)” was recommended by his commanding officer (CO) and approved by headquarters.  The Applicant also contends he was either not informed or misinformed of his actual separation.  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.  As evidenced in message traffic, reference NAVSHIPYD Philadelphia Pa, DTG 041200Z Feb 93, the Applicant was informed via the notification procedure he was being administratively processed for separation on the basis of misconduct due to commission of a serious offense (COSO).  He was afforded and waived all rights except the right to consult with counsel and submit a statement.  The subject message was forwarded by the Applicant’s CO to BUPERS recommending approval of the separation with a “General (Under Honorable Conditions)” discharge.  BUPERS responded, reference BUPERS Washington DC message DTG 231914Z MAR 93, inquiring as to whether the CO’s message was in error because they used the notification board procedure with a least favorable characterization of “General (Under Honorable Conditions)  instead of the administrative board procedure with a least favorable characteristic of “Other Than Honorable” (OTH).  

In the Applicant’s record was also a notice of an administrative board procedure of 12 February 1993, where the Applicant was informed of the proposed separation based on misconduct due to COSO with a least favorable characterization of OTH.  The Applicant signed this notice on 12 February 1993 acknowledging receipt and understanding its’content.  Based on a review of the available records, the Board determined there appears to be a discrepancy on the date of the notice of separation that is referenced in the message traffic NAVYSHIPYD 041200Z Feb 93 that it is subsequent to the date of the message.  Nonetheless, there is sufficient evidence to conclude that the Applicant was notified of administrative processing via the administrative board procedure with the least favorable characterization of OTH; he was notified of his right to seek the advice of counsel prior to signing and he did acknowledge an understanding of the contents of the document he signed.  Based on the foregoing evidence and the seriousness of the offenses committed by the Applicant, especially the assault on his wife and child, the Board determined an upgrade would be inappropriate.    

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.

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