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

Docket No. ND09-00256

ex-YNSA, USN

Current Discharge and Applicant’s Request

Application Received:  20081114
Characterization of Service Received:  GENERAL (UNDER HONORABLE CONDITIONS)
Narrative Reason for Discharge: MISCONDUCT
Authority for Discharge:  MILPERSMAN 1910-138 (MINOR DISCIPLIINARY INFRACTIONS)

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

Summary of Service

Prior Service:
Inactive: USNR (DEP)	19990304 - 19990322  COG	Active:	NONE

Period of Service Under Review:
Date of Enlistment:  19990323	Age at Enlistment:  25
Period of Enlistment:  4 Years  12 MONTHS Extension
Date of Discharge:  20010207	Highest Rank/Rate:  YNSN
Length of Service:  01 Year(s)   10  Month(s)   15 Day(s)
Education Level:  12	AFQT:  42
Evaluation Marks:	Performance:  NFIR	Behavior:  NFIR	OTA:  NFIR

Awards and Decorations (per DD 214):	NONE

Periods of UA/CONF:  NFIR

NJP:  1
- 20010202:	Article 86 (UA), 2 specifications (duration NFIR)
	Awarded: RIR RESTR  Suspended:  NONE

SCM:  NONE   SPCM:  NONE   CC:  NONE

Retention Warning Counseling:  1

- 20000925:	For your irresponsibility resulting in oral and written counseling for being late for work, declining work performance, inability to complete assigned tasks and violation of the Uniform Code of Military Justice, disregarding State Law by driving on a suspended license. 

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: “1910-138”
	
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:	☐

Related to Post-Service Period (cont):

	Health/Medical Records:	☐	Substance Abuse:		☐	Criminal Records:	☐
	Family/Personal Status:	☐	Community Service:	☐	References:		☐
              Additional Statements:
                             From Applicant:  ☐	From Representation:         ☐	From Congress member:    ☐

                    Other Documentation:  ☐

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 26, effective 4 January 2000 until 
24 February 2002, Article 1910-138 , Separation By Reason Of Misconduct - Minor Disciplinary Infractions.

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. Reenlistment code.
2. Separation code.
3. Length of service.
4. Discharge not justified.

Decision

Date:  20090305	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.

Discussion

Issue 1:  This is either an Issue which the Board cannot form the basis of relief for the Applicant, or one 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 Reenlistment/RE Codes, regarding this Issue.

Issue 2:  (Propriety)  RELIEF NOT WARRANTED.  Separation codes (Block 26 of DD Form 214) are based on the Separation Authority (Block 25 of DD214).  In this case, the Separation Authority was incorrect and should have read, “MILPERSMAN 1910-138 (MINOR DISCIPLIINARY INFRACTIONS)” vice “MILPERSMAN 1910-140 & CNSGPNW LTR DTD 05FEB01.”  As noted above, the Board will submit a change to COMNAVPERSCOM to correct this error.  Although Block 25 was incorrect, the command did use the correct separation code, JKN – Involuntary discharge, no board entitlement. This code is used when a member has less than 6 years of total active service.

Issue 3:  (Propriety)  RELIEF NOT WARRANTED.  The Board could not find documentation in the Applicant’s service records to warrant changing his separation date as listed on his DD Form 214, and the Applicant did not provide documentation to support his claim that he served a full two years.  The Commander, Naval Surface Group, Pacific Northwest letter, 1910 Ser NOOJ/049 of 5 Feb 01, did state the Applicant would be separated locally on 15 February 2001, but the DD Form 214 has precedence.  Even if the CO’s date was correct, the Applicant’s total service would still not be equal to or greater than 2 years.  The Board presumes regularity in the determination of the Applicant’s discharge date and his total service remains at 01 year, 10 months, and 15 days.

Issue 4:  (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends he should not have been discharged for minor violations and was not given a chance to correct his actions.  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 one NJP for violation of the Uniform Code of Military Justice (UCMJ): Article 86 (UA, absence without leave, 2 specifications).   The Board could not determine from the Applicant’s service record the specific charges of the Article 86 violations, but based on the separation authority the charges must have been minor in nature and could not have resulted in a punitive discharge and confinement if adjudicated and awarded as part of a sentence by a special or general court martial.  The command is authorized to administratively separate a service member based on a number of minor infractions.

For the edification of the Applicant, members may be processed for separation based upon a series of at least three, but not more than eight, minor violations of the UCMJ, provided:

a.  None of the reasons could have resulted in a punitive discharge,
b.  Offenses are documented in the member’s service record,
c.  Offenses have occurred during the current enlistment;

d.  Member was disciplined by one NJP, and 
e.  Member has violated a NAVPERS 1070/613, Administrative Remarks counseling/warning.

The Board could verify most, but not all, of the requirements and therefore must rely upon the presumption of regularity in the conduct of government affairs.  

The Applicant was given a NAVPERS 1070/613, Administrative Remarks (Page 13) entry on 25 September 2000 for his “irresponsibility resulting in oral and written counseling for being late for work, declining work performance, inability to complete assigned tasks and violation of the Uniform Code of Military Justice, disregarding State Law by driving on a suspended license.” The Page 13 clearly states in paragraph 5, “This counseling and warning entry is made to afford you an opportunity to undertake the recommended corrective action.  Any failure to adhere to the guidelines cited above will make you eligible for administrative separation.”  The Applicant acknowledged and signed the Page 13 on 25 September 2000 and chose not to make a statement.  Approximately five months after this counseling, the Applicant failed to adhere to the guidelines of the Page 13 as documented by his NJP, and was administratively processed for separation.  The Applicant was not given an administrative separation board because he had less than 6 years of total active service at the time of the violations.  However, the record of evidence clearly shows the Applicant waived his right to consult with a qualified counsel and to submit a written statement.  If the Applicant felt he was mistakenly charged with a violation, it was his obligation to contest those charges at the time they were made.  The Board determined the awarded discharge characterization was appropriate and an upgraded would be inappropriate.  

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, there is no law or regulation, which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service.  Outstanding post-service conduct, 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, is considered during Board reviews.  Documentation to help support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificate (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attending or completion of higher education (official transcripts) and documentation of alcohol non-dependency and a drug-free lifestyle.   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 accomplishments help demonstrate previous in-service misconduct was an aberration and not indicative of the member’s overall character.

Besides the Applicant’s statement on the DD Form 293, he failed to provide any additional documentation and evidence on his behalf.  The Applicant remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of discharge.  Should the Applicant feel at some later time his post-service conduct is worthy of personally presenting to the NDRB there are organizations, such as the American Legion, willing to provide guidance and assistance in preparing such a presentation. 

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	CC - Civilian conviction	CCU - Correctional Custody Unit	B&W – Confinement on bread and water

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