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

Docket No. ND09-00701

ex-DCFA, USN

Current Discharge and Applicant’s Request

Application Received: 20090130
Characterization of Service Received:  
Narrative Reason for Discharge: 
Authority for Discharge:  MILPERSMAN 

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

Summary of Service
Prior Service:
Inactive:	USNR (DEP)	20021212 - 20030930  	Active:	

Period of Service Under Review:
Date of Enlistment:  20031001	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20070103	Highest Rank/Rate:  DCFN
Length of Service:   Year(s)     Month(s)   03 Day(s)
Education Level:  	AFQT:  50
Evaluation Marks:	Performance:  3.1 (6)	Behavior:  2.5 (6)	OTA:  3.01

Awards and Decorations (per DD 214):	   (2) NMCOSR (2)

SCM:     SPCM:     CC:  

NJP:  
- 20050115:	Article 121 (Larceny)
	Article 86 (UA, absence without leave)
	Article 92 (Failure to obey an order or regulation)
	Awarded:      Suspended:    Vacated 20050420

- 20050420:	Article 92 (Failure to obey a lawful general order or regulation) 
	Awarded:      Suspended:  

- 20061116:	Article 128 (Assault)
	Article 92 (Failure to obey order or regulation
	Awarded:      Suspended:  

Retention Warning Counseling:  

- 20050115:	For violation of UCMJ: Article 121 (Larceny), Article 86 (UA), and Article 92 (Failure to obey an order or regulation).

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:  

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

Applicant’s Issues

1.  Ability to serve was impaired by his youth and immaturity.
2.  Equity of discharge based on three minor offenses.
3.  Discharge was based on a pattern of misconduct, but the third offense was isolated from the previous ones.
4.  Command abused its authority when it pursued a discharge.

Decision

Date:  20090507		Location:  Washington D.C.	Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  PATTERN OF MISCONDUCT.

Discussion

Issue 1:  ()  .  The Applicant contends he is entitled to a discharge upgrade due to youth and immaturity which impaired his ability to serve.  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 3 NJPs for violations of the Uniform Code of Military Justice (UCMJ):  Article 86 (UA, absent without leave); Article 92 (Failure to obey an order or regulation); Article 121 (Larceny) and Article 128 (Assault).  These are considered serious offenses which could 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 Applicant also stated the civilian charges which led to his first NJP were dismissed by Japanese Court Officials, but provided no proof that was in fact the case.  The command did not refer the Applicant for a court-martial but opted instead for an administrative discharge based on his established pattern of misconduct.  Although the Applicant entered military service at the age of seventeen, he had over three years of service before his discharge, and should have been able to conform to military standards.  The NDRB recognizes that many of our service members are young at the time they enlist for service but still manage to serve honorably.  While we understand some member’s may be less mature than others, the NDRB does not view a member’s claim of immaturity to be a mitigating factor or a sufficient reason for misconduct.  The NDRB determined the awarded discharge characterization was appropriate and an upgrade would be inappropriate based on a foundation of youth and immaturity. 

Issue 2:  ()  .  The Applicant contends he is entitled to a discharge upgrade due to the fact the three charges he received NJP for were minor in nature.  Quite the contrary, all three NJPs involved major offenses which could 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 NDRB determined this issue was without merit.  The awarded discharge characterization was appropriate and an upgrade would be inappropriate.  

:  ()  .  The Applicant contends he is entitled to a discharge upgrade because it was based on a pattern of misconduct, but the third offense was isolated from previous two.  For the edification of the Applicant, members may be separated when during their current enlistment they have two or more NJPs, court-martials, or civil convictions and violate a NAVPERS 1070/613 Administrative Remarks counseling/warning (Page 13).  It’s the number of NJPs within an enlistment period that establishes the pattern, not whether they are related.  Therefore, the fact the first two NJPs occurred within three months of each other, and the third NJP happened seventeen months after the second is irrelevant since they all occurred within the same enlistment.  The NDRB determined this issue was also without merit and the awarded discharge characterization was appropriate.

Issue 4:  ()  .  The Applicant contends he is entitled to a discharge upgrade due to his command abusing their authority in pursuing the discharge.  The Applicant failed to produce any evidence the discharge was unwarranted or that the command abused their authority in pursuing the discharge.  His command could have referred him to a 

special or general court-martial based on the seriousness of the multiple offenses.  In reviewing the Applicant’s in-service record, all paperwork and procedures were followed in accordance with the Military Personnel Manual and UCMJ.

For the Applicant’s edification, 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; and documentation of 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.

The Applicant provided no documentation in support of his request.  To warrant an upgrade the Applicant’s post-service efforts need to be more encompassing.  The Applicant could have produced additional evidence as stated in the above paragraph with the full understanding completion of these items alone does not guarantee an upgrade.  Should the Applicant feel his post- service conduct becomes substantial enough to warrant a personal appearance, there are veteran’s organizations, such as the American Legion, willing to provide guidance to assist former service members in their efforts to obtain a discharge upgrade.  

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 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.

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 86 (UA, absent without leave); Article 92 (Failure to obey an order or regulation); Article 121 (Larceny) and Article 128 (Assault). 

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 NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the NDRB’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 NDRB 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 NDRB 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 NDRB 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	BW – 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