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

Docket No. ND10-01186

ex-HTFR, USN

Current Discharge and Applicant’s Request

Application Received: 20100113
Characterization of Service Received: (per DD 214) UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge: (per DD 214) MISCONDUCT (SERIOUS OFFENSE)
Authority for Discharge: (per DD 214) MILPERSMAN 1910-142 [COMMISSION OF A SERIOUS OFFENSE]

Applicant’s Request:	Characterization change to:	GENERAL (UNDER HONORABLE CONDITIONS)
	Narrative Reason change to:	REQUESTED, BUT NOT SPECIFIED

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	20060629 - 20060711  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  20060712	Age at Enlistment:  18
Period of Enlistment:  4 Years  NO Extension
Date of Discharge:  20081006	Highest Rank/Rate:  HTFN
Length of Service:  02 Year(s)   02  Month(s)   25 Day(s)
Education Level:  12	AFQT:  49
Evaluation Marks:	Performance:  2.3 (3)	Behavior:  2.3 (3)	OTA:  2.28

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

Periods of UA/CONF:  UA:  20081001-20081006, 6 days / CONF:  NONE  Discharged in absentia

NJP:  3

- 20080613:	Article 92 (Failure to obey order or regulation), 3 specifications
	Specification 1: Wrongfully possess a dangerous weapon, to wit: butterfly knife and a pellet rifle
	Specification 2: Violate a lawful general regulation by wrongfully operating a vehicle without a valid driver’s license
	Specification 3: Violate a lawful general regulation by wrongfully operating a vehicle with expired registration
	Specification	Awarded: RESTR EPD FOP RIR  Suspended:  FOP RIR [Suspension vacated 20080702]

- 20080702:	Article 86 (Unauthorized absence), 2 specifications
	Specification 1: Failure to go to appointed place of duty (restriction muster) on 0630, 20080616
	Specification 2: Failure to go to appointed place of duty (restriction muster) on 1800, 20080629
	Article 92 (Failure to obey order or regulation – violation of written regulations for restriction)
	Awarded: CBW Suspended:  NONE

- 20080901:	Article 86 (Unauthorized Absence from 20080818-20080819, 2 days – Kuala Lumpur, Malaysia)
	Article 92 (Failure to obey order or regulation)
	Article 107 (False official statement)
	Awarded: RESTR EPD FOP RIR  Suspended:  NONE

SCM:  NONE		SPCM:  NONE		CC:  NONE

Retention Warning Counseling:  1
- 20080613:	For violating a lawful general regulation by wrongfully possessing a dangerous weapon on board a Naval installation, operating a vehicle without a valid driver’s license, and operating a vehicle with expired registration.

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:	☐	Rehabilitation/Treatment:	☐	Criminal Records:	☐
	Personal Documentation:	☐	Community Service:	☐	References:	☐
	Department of VA letter:	☐	Other Documentation:	☐
		Additional Statements:
	From Applicant:	☐	From/To Representation:	☐	From/To Congress member:	☐

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 23, effective 12 June 2008 until 9 November 2009, Article 1910-142, SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

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 92 and Article 107.

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

Applicant’s Issues

Decisional issues: The Applicant contends that his characterization of service at discharge was unjustly harsh as his misconduct was the result of his failure to adapt to the military.

Decision

Date:  20110609	     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 (SERIOUS OFFENSE).

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 NDRB 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 identified one decisional issue for the NDRB’s consideration; in addition, the NDRB completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety.  

The Applicant’s record of service reflects entry into the military at age 18 with waivers to service enlistment standards due to pre-service drug use (marijuana) and multiple tattoos.  He enlisted with a guaranteed training program of Hull Technician “A” school.  Throughout his enlistment period, the Applicant received one NAVPERS 1070/613 retention-counseling warning.  The Applicant’s period of enlistment under review did, however, include three nonjudicial punishments for violations of the following Articles of the Uniform Code of Military Justice:  

•	Article 86 (Absence without leave - 2 specifications of a failure to be at appointed place of duty and 1 specification of absenting himself from his unit and remaining so absent, without proper authority, in a foreign nation)
•	Article 92 (Failure to obey an order or regulation - 5 specifications)
•	Article 107 (False official statement - 1 specification).

The NDRB reviewed the Applicant’s administrative separation package.   The Applicant was notified of the Command’s intention to recommend his separation on 03 September 2008.  The Applicant acknowledged - in writing - that he understood that the least favorable characterization he could receive at discharge was Under Other Than Honorable Conditions.  The Applicant was notified by the administrative board notification process; he elected to waive his right to consult with qualified legal counsel, waived his right to an administrative hearing board to present his defense, and chose not to submit a statement to the Separation Authority.  Based on the Applicant’s misconduct of record, his command recommended separation with the least favorable characterization of service - Under Other Than Honorable Conditions.  The Separation Authority approved the recommendation for separation, designating that the basis for separation be MISCONDUCT (Commission of a Serious Offense) - having determined that the evidence of record supported the proposed basis for discharge - and that the characterization of service, as recommended, was warranted.  The Applicant was discharged - in absentia - on 06 October 2008 with an Under Other Than Honorable Conditions characterization of his service and was assigned a reentry code of RE-4.

(Decisional Issue) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends that his characterization of service at discharge was unjustly harsh as his misconduct was the result of his failure to adapt to the military.  In accordance with Article 1910-142 of the Naval Military Personnel Manual (MILPERSMAN), service members may be separated based on the commission of a serious military offense when the CO believes the specific circumstances of the offense warrant separation and the offense would warrant a punitive discharge if adjudicated at trial by court martial for the same or closely related offense.  The Applicant’s violation of UCMJ Articles 92 and 107 warrant punitive discharge and confinement for up to five years, if adjudged at trial by special or general court martial.  Based on a review of the evidence of record, the NDRB determined that the Applicant’s misconduct did properly satisfy the requirements established by the MILPERSMAN for

separation based on the commission of a serious offense as a basis for discharge.  As such, the NDRB determined there was no impropriety because of an error of fact, law, procedure, or discretion with the discharge.  Relief based on propriety, denied.    

The Applicant contends that his characterization of service at discharge was unjustly harsh as his misconduct was the result of his failure to adapt to the military lifestyle; he provided no documentation or explanation in support of this claim.  The NDRB recognizes that many of our service men and women are young at the time they enlist for service, but most still manage to serve honorably.  While we understand some members 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 to mitigate deliberate, conscious acts of misconduct.  Wrongful possession of weapons, failure to comply with requirements for a driver’s license and vehicular registration, refusal to comply with written lawful orders, and unauthorized absence without authority in another sovereign nation are deliberate and willful misconduct regardless of a service member’s ability to “adapt to the military lifestyle.”  As such, the NDRB determined that the discharge action was consistent with service policy and was warranted.

Upon review of the Applicant’s record of service, the NDRB determined the Applicant engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service.  The NDRB found the characterization of the Applicant’s discharge was equitable and was consistent with the characterization of discharge given others in similar circumstances.  Accordingly, after a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned no impropriety or inequity in the narrative reason for discharge or the characterization of the Applicant’s service at discharge.  The NDRB’s vote was unanimous that an upgrade would not be appropriate and that relief is not warranted.  Relief denied.    

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, and discharge process, the NDRB determined that the discharge was both proper and equitable as issued.  Therefore, the awarded characterization of service shall remain UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain MISCONDUCT (SERIOUS OFFENSE).  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his discharge.  The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews and Post-Service Conduct.

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