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

Docket No. ND09-01696

ex-AA, USN

Current Discharge and Applicant’s Request

Application Received: 20090601
Characterization of Service Received:  (per DD 214)  UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge:  (corrected) PATTERN OF MISCONDUCT
Authority for Discharge: (per DD 214)  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)	20020531 - 20020624  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  20020625	Age at Enlistment:  17 (PARENTAL CONSENT)
Period of Enlistment:  4 Years  NO Extension
Date of Discharge:  20051002	Highest Rank/Rate:  AN
Length of Service:  03 Year(s)   03  Month(s)   08 Day(s)
Education Level:  11	AFQT:  31
Evaluation Marks:	Performance:  2.0 (2)	Behavior:  2.0 (2)	OTA:  2.09

Awards and Decorations (per DD 214):	NDSM SSDR GWOTEM

Periods of CONF:  NONE

NJP:  4

- 20030929:	Article 86 (Absence without leave from appointed place of duty 20030823)
	Article 128 (Assault on 20030702)
	Awarded: FOP RIR  Suspended:  RIR  Vacated:  20031030 [extracted from CO Recommendation for Administrative Separation letter dated 20050914.]

- 20041104:	Article 86 (Absence without leave), 3 specifications
	Specification 1: 20040823 – 20040825, 2 days.
	Specification 2: 20041025 – 20041026, 1 day.
	Specification 3: Fail to go to morning muster on 20041103.
	Article 89 (Disrespect toward superior commissioned officer)
	Awarded: RESTR EPD FOP  Suspended:  NONE

- 20050812:	Article 128 (Assault on 20050805)
	Awarded: RIR FOP CBW  Suspended:  NONE

- 20050914:	Article 86 (Absence without leave), 2 specifications
	Specification 1: 0600, 20050901 – 0800, 20050901.
	Specification 2: 20050902 – 20050906, 4 days, surrendered
	Awarded: CBW FOP  Suspended:  NONE

SCM:  NONE

SPCM:  NONE

CC:  NONE

Retention Warning Counseling:  1

- 20030929:	For violation of article 86 and 128 resulted in CO’s NJP held this date

NDRB Documentary Review Conducted (date):	20080711
NDRB Documentary Review Docket Number:	ND08-00869
NDRB Documentary Review Findings:		Proper as issued and that no change is warranted.

Block 28,Narrative Reason for Separation, should read: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/To Representation:	☐	From/To Congress member:	☐
                    Other Documentation:	☐

YesYesNot ApplicableNot ApplicablePertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 April 2005 until 19 May 2008, 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.  Characterization of discharge was too harsh for the misconduct committed.
2.  Post-service conduct warrants consideration.
Decision

Date:  20100623	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 PATTERN OF MISCONDUCT.

Discussion

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.  In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Applicant’s record of service included one NAVPERS 1070/613 (Page 13) warnings and four nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, 3 specifications: 2 days, 1 day, 4 days-surrendered), Article 86 (Absent from appointed place of duty, 3 specifications), and Article 128 (Assault, 2 specifications).  Based on the offenses committed by the Applicant, his command administratively processed him for separation. When notified of administrative separation processing using the administrative board procedure, the Applicant waived his rights to consult with a qualified counsel, submit a written statement, and request an administrative board.  The Applicant was discharged in absentia.

Issue 1:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends the characterization of his discharge was too harsh for the misconduct committed.  The NDRB reviews the propriety and equity of an Applicant’s discharge individually on a case-by-case basis.  If such a review reveals an impropriety or inequity, relief is in order.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service.  Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the U.S. Navy.  A preponderance of the evidence reviewed supports the conclusion that the Applicant committed a serious offense and met the requirements for separation for a pattern of misconduct, that separation from the Naval service was appropriate, and that an Under Other Than Honorable discharge was warranted.

Issue 2:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends his post-service conduct warrants consideration for an upgrade.  The NDRB considers post-service conduct to determine if the misconduct committed during active duty was indicative of the Applicant's character or an aberration.  Along with the DD Form 293, the Applicant provided eleven letters of reference, which were from pastors of the church he attends or supports, professors from his college, and previous employers. Unfortunately, this is insufficient documentation to evaluate the Applicant’s post-service character and conduct.  The Applicant's efforts needed to be more encompassing.  Along with his letters of references, he should have provided documentation that could include but not limited to:  verifiable employment record; evidence of a drug-free life style (completion of rehabilitation or proof of attendance at Narcotics Anonymous or Alcoholics Anonymous meetings); certification of non-involvement with civil authorities; evidence of financial stability (mortgage or home rental history, credit score, credit card payments); college transcripts; documentation of community or church service; and if married, a marriage certificate.  The Applicant should be aware submission of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the NDRB on a case-by-case basis.  After a careful review of the Applicant's post-service documentation and official service record, and taking into consideration his testimony, the testimony of his witness, and the facts and circumstances unique to this case, the NDRB discerned no impropriety in the discharge action or an inequity in the characterization of service.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, and discharge process, the Board found the discharge was proper and equitable.  Therefore, the awarded characterization of service shall remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain PATTERN OF MISCONDUCT.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe 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:  After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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.  There are veterans organizations such as the American Legion and the Disabled American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their 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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB.  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 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended 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 BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.  

Post-Service Conduct:  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  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 support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (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; attendance at or completion of 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  in-service misconduct was an aberration and not indicative of the member’s overall character.

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 – Nonjudicial 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