Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: jennifer.miles
Company: NCPB

Docket No. ND09-00950

ex-OSSR, USN

Current Discharge and Applicant’s Request

Application Received: 20090313
Characterization of Service Received:  UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge: MISCONDUCT
Authority for Discharge:  MILPERSMAN 1910-140 (PATTERN OF MISCONDUCT)

Applicant’s Request:  Characterization change to:  GENERAL (UNDER HONORABLE CONDITIONS)
		       Narrative Reason change to:  NONE REQUESTED

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	20000705 - 20010523  COG	Active:	NONE

Period of Service Under Review:
Date of Enlistment:  20010524	Age at Enlistment:  17 (PARENTAL CONSENT)
Period of Enlistment:  4 Years  NO Extension
Date of Discharge:  20030620	Highest Rank/Rate:  OSSN
Length of Service:  02 Year(s)   00  Month(s)   27 Day(s)
Education Level:  12	AFQT:  56
Evaluation Marks:	Performance:  NFIR	Behavior:  NFIR	OTA:  NFIR

Awards and Decorations (per DD 214):	NDSM

Periods of UA/CONF:  NONE

NJP:  4
- 20030204:	Article 86 (Failing to go or leaving place of duty)
	Article 92 (Failure to obey order or regulation)
	Article 117 (Provoking speeches or gestures)
	Article 134 (Sentinel or lookout, offense against or by)
	Article 134 (Threatening of harm or death to another)  
		Awarded: RIR FOP RESTR EPD  Suspended:  NONE

- 20030204:	Article 89 (Disrespectful towards superior commissioned officer) 
		Awarded: RIR FOP CONF B&W 3 DAYS   Suspended:  NONE

- 20030317:	Article 91 (Insubordinate conduct)
	Article 134 (Indecent language)
		Awarded: FOP RESTR EPD  Suspended:  NONE

- 20030607:	Article 89 (Disrespect toward a commissioned officer), 3 specifications
	Article 90 (Disobeying superior commissioned officer)
	Article 91 (Insubordinate conduct)
	Article 92 (Dereliction of duty)
	Article 134 (Indecent language)  
		Awarded: FOP RESTR EPD  Suspended:  NONE

SCM:  NONE          SPCM:  NONE          CC:  NONE

Retention Warning Counseling:  1
- 20030204:	For personal behavior, professionalism, military bearing, and reporting to appointed place of duty. 

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:  ☐

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 25 January 2004, 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 89 (Disrespectful towards superior commissioned officer), Article 90 (Disobeying superior commissioned officer), Article 91 (Insubordinate conduct), Article 92 (Failure to obey order or regulation), Article 92 (Dereliction of duty), Article 117 (Provoking speeches or gestures), Article 134 (Sentinel or lookout, offense against or by),  Article 134 (Indecent language) and Article 134 (Communicating a Threat).  

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

Applicant’s Issues

1.  Characterization of discharge is affecting my employment opportunities. 
2.  Although Applicant was immature in the manner he dealt with change, his record of service was good the first two years. 

Decision

Date:  20090820	 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.

Discussion
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 NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted.  The Applicant’s record of service was marred by a retention warning and four NJP’s for violations of the Uniformed Code of Military Justice: Article 86 (Unauthorized absence: failing to go or leaving place of duty), Article 89 (Disrespectful towards superior commissioned officer – 4 specifications), Article 90 (Disobeying superior commissioned officer), Article 91 (Insubordinate conduct), Article 92 (Failure to obey an order or regulation), Article 92 (Dereliction of duty), Article 117 (Provoking speeches or gestures), Article 134 (Sentinel or lookout, offense against or by),  Article 134 (Indecent language – 2 specifications) and Article 134 (Communicating a Threat).  The NDRB advises the Applicant certain serious offenses—that include those committed— warrant separation from the service in order to maintain proper order and discipline.  The Applicant waived all rights regarding his administrative separation process, he  acknowledged that the least favorable characterization of his service would be Other Than Honorable, and showed no desire to be retained in the Naval Service.  Based on the offenses committed by the Applicant, his command chose to administratively discharge him.  

Issue 1:  The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  The Department of Veterans Affairs 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.  Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

Issue 2: (Equity)  RELIEF NOT WARRANTED.  The Applicant contends that although he was immature in the manner he dealt with change of command, his record of service was good the first two years, thus he would like his discharge to reflect those accomplishments.  The Applicant has requested an upgrade in his characterization to “General (Under Honorable Conditions)”.  For the edification of the Applicant, a “General (Under Honorable Conditions)” discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record.  A discharge “Under Other Than Honorable Conditions” is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service. The Board determined the Applicant’s conduct, which forms the primary basis for determining the character of his service, reflected a significant departure from the conduct expected of a service member and the awarded characterization was appropriate. Relief denied.

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  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 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 completing higher education (official transcripts) 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 failed to provide any documentary evidence on his behalf for post-service consideration.  The Applicant could have produced evidence as stated in the above paragraph with the full understanding completion of these items alone does not guarantee an upgrade.  By a unanimous vote of 5-0, the Board determined the characterization of service received, “Under Other Than Honorable Conditions,” and the narrative reason for the discharge; “Misconduct,” shall remain as issued considering the length of service and the UCMJ violations involved.

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 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