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

Docket No. ND08-01635

ex-SA, USN

Current Discharge and Applicant’s Request

Application Received: 20080730
Characterization of Service Received: GENERAL (UNDER HONORABLE CONDITIONS)
Narrative Reason for Discharge: MISCONDUCT-PATTERN OF MISCONDUCT
Authority for Discharge: MILPERSMAN 1910-104 (PATTERN OF MISCONDUCT)

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

Summary of Service

Prior Service:
Inactive: USNR (DEP)	20050623 - 20050802  COG		Active:   NONE

Period of Service Under Review:
Date of Enlistment: 20050803	Period of Enlistment: 4 Years  NO Extension	Date of Discharge: 20060609
Length of Service: 00 Years   10  Months  07 Days	Education Level: 12	Age at Enlistment: 19	AFQT: 54
Highest Rank/Rate: 	SA	Evaluation Marks: Performance:	NFIR	Behavior: NFIR	OTA: NFIR
Awards and Decorations (per DD 214):	NDSM GWOTSM

Periods of UA/CONF:  NONE    SCM:  NONE    SPCM:  NONE    CC:  NONE

NJP:  3
- 20060405:  Article 86 (UA), 4 specifications, on 20060308 and 20060320.  No further information found in service
                     record.
                    Awarded:  RESTR EPD FOP   Suspended:  NONE

- 20060427:  Article 134 (Breaking restriction), 5 specifications, on 20060406, 20060407, 20060409, 20060410, and                
                      20060411.
                     Awarded: RESTR EPD FOP  Suspended:  NONE

- 20060504:  Article 134 (Breaking restriction)
                     Article 86 (UA)
                     Awarded:  RESTR EPD FOP  Suspended:  NONE

Retention Warnings:  2
- 20050915:  For violation of the Recruit-to Recruit Standards of Conduct - writing letter to another recruit while on 
                      recruit status.

- 20060427:  For CO’s NJP for violation of UCMJ Article 134 (Breaking restriction)

Administrative Corrections to the Applicant’s DD 214

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

	Block 25, Separation Authority, should read: “MILPERSMAN 1910-140”

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/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 Congress member:    ☐

              Other Documentation (Describe): ☐

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 April 2005 until Present, 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.

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

Applicant’s Issues

1.   Seeking to have the re-entry code changed so she can obtain benefits and support.
2.   Should have received a medical discharge under honorable conditions.

Decision

Date:  20081113           DOCUMENTARY REVIEW	Location:  Washington D.C.	Representation:  NONE

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

Discussion

Issue 1:  The Applicant is seeking an upgrade in order to get her reentry code changed so that she can obtain government benefits.  These are either Issues which the Board cannot form the basis of relief for the Applicant, or ones for which the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum, specifically the paragraph concerning Service Benefits/Reenlistment/RE-code, for additional information regardingthese Issues.

Issue 2:  (Equity)  RELIEF NOT WARRANTED.  The Applicant contends she should have received a medical discharge for a personality disorder (obsessive compulsion disorder –OCD) under “Honorable” conditions, as recommended by the psychologist. However, she wanted to stay in the Navy so she accepted captain’s mast and was subsequently discharged.  The Applicant also contends she was advised of the right to consult an attorney and go to court, or see the captain; subsequent to scheduling an appointment to see an attorney she cancelled it after being told the decision to discharge her had already been made.  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.  There is no evidence in the record nor presented by the Applicant to support a discharge based on personality disorder or OCD.  The Board requested the Applicant’s medical records on 6 August 2008 from the Department of Veteran’s Affairs.  However, the records were not available at the time of the documentary review.  It was noted on the recommendation for administrative separation paperwork there was no recommendation, nor mention, of a psychiatric review being required or completed.  Additionally, there was no mention is any of the separation documents review of the Applicant having any personality disorder or having seen a military doctor for such.  Therefore, in applying the presumption of regularity, the Board concluded the command complied with regulation in the administrative processing of this case.  The Applicant bears the burden of overcoming this presumption of regularity in this case through the presentation of substantial and credible evidence to support his issue.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  

The record reflects there was sufficient basis to administratively process the Applicant for misconduct due to a pattern of misconduct.  The Applicant had 2 retention warnings and 3 NJP’s during this enlistment for violations of the Uniform Coder of Military Justice (UCMJ):  Article 86 (UA) and Article 134 (Breaking restriction).  Based on the aforementioned evidence clearly documented in the Applicant’s service record, a pattern of misconduct is the most appropriate basis for discharge.  Additionally, there was no evidence of wrongdoing on the part of the command or evidence the command coerced the Applicant into waiving her right to consult with counsel and an administrative board.  The Board determined the awarded discharge characterization and narrative reason were appropriate and an upgrade or change 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 or for any basis wherein an Other Than Honorable Discharge is authorized, 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 – Non-judicial 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