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

Docket No. ND11-01250

ex-GSMFA, USN

Current Discharge and Applicant’s Request

Application Received: 20110419
Characterization of Service Received: (per DD 214) UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge: (per DD 214) PATTERN OF MISCONDUCT
Authority for Discharge: (per DD 214) MILPERSMAN 1910-140 [PATTERN OF MISCONDUCT]

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

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	19990426 - 19990505  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  19990506	Age at Enlistment:  19
Period of Enlistment:  4 Years  NO Extension
Date of Discharge:  20030414 (in absentia)	Highest Rank/Rate:  GSMFN
Length of Service:  03 Year(s)   11  Month(s)   09 Day(s)
Education Level:  12	AFQT:  79
Evaluation Marks:	Performance:  2.0 (2)	Behavior:  1.7 (3)	OTA:  1.95

Awards and Decorations (per DD 214):	SSDR (2) NAVY "E" NDSM AFEM NUC

Periods of CONF:  NONE

Periods of time lost per (DD214):	UA 20010405 - 20010722 (108 days)	UA 20030330 - 20030413 (14 days)

NJP:  8

- 19991110:	Article 92 (Failure to obey an order or regulation, underage drinking, 2 specifications)
	Article 134 (General Article, false CA state identification, with intent to deceive)
	Awarded: RIR (to E-1) FOP RESTR EPD   Suspended:  NONE

- 20000304:	Article 86 (Absence without leave, 0600-1405, 20000217)
	Awarded: FOP RESTR EPD   Suspended:  FOP (suspend 6 months)
	* [Suspended FOP vacated on 20000624 due to further misconduct]

- 20000622:	Article 86 (Absence without leave, 2 specifications)
	Article 91 (Insubordinate conduct toward noncommissioned officer or petty officer, 3 specifications)
	Article 92 (Failure to obey order or regulation)
	Awarded: RESTR EPD   Suspended:  NONE

- 20001120:	Article 86 (Absence without leave, 2 specifications, 20001102 and 20001109)
	Awarded: FOP RESTR EPD   Suspended:  FOP (suspend 6 months)

- 20001227:	Article 86 (Absence without leave, 20001220 and 20001226)
	Article 92 (Failure to obey an order or regulation, 2 specifications)
	Awarded: RESTR EPD   Suspended:  NONE

- 20010117:	Article 91 (Insubordinate conduct toward noncommissioned officer or petty officer, o/o 20010103-0104)
	Article 92 (Failure to obey an order or regulation, 2 specifications)
	Awarded: RESTR EPD   Suspended:  NONE
		
- 20010125:	Article 90 (Willfully disobeying a superior commissioned officer)
	Article 91 (Insubordinate conduct toward noncommissioned officer or petty officer)
	Article 134 (General Article, releasing prisoner without proper authority)
	Article 134 (General Article, obstructing justice)
	Article 134 (Restriction, breaking)
	Awarded: FOP RESTR EPD   Suspended:  NONE

20030221:	Article 92 (Failure to obey an order or regulation, 20030214)
	Awarded: RIR (to E-2) FOP RESTR   Suspended:  NONE

SCM:  NONE	SPCM:  NONE	CC:  NONE

Retention Warning Counseling:  8

- 19991110:	For violation of UCMJ Article 92, Fail to obey order or regulation; Article134, False identification card.
- 20000304:	For violating the UCMJ Article 86, Absence without leave.
- 20000304:	For having a tongue stud through your tongue, it was subsequently confiscated.
- 20000622:	For violation of UCMJ Article 91, Insubordinate conduct toward a petty officer (3 specifications), Article 92, Fail to obey order or regulation, and Article 86, Absence without leave (2 specifications).
- 20001019:	For the Disciplinary Review Board (DRB) noted deficiency in your actions and responsibilities.
- 20001120:	For violation of UCMJ Article 86, Absence without leave, 2 specifications.
- 20001227:	For violation of the UCMJ Article 86, Absence without leave and Article 92, Failure to obey order or regulation, 2 specifications.
- 20010117:	For violation of the UCMJ Article 92, Failure to obey order or regulation (2 specifications) and Article 91, Willful disobedience of a First Class Petty Officer.

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), re-issued October 2002, effective 22 August 2002 until 25 April 2005, 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 greater than 30 days), 90, 91, and 92.

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

Applicant’s Issues

1.	Applicant seeks a discharge upgrade to increase employment opportunities. 
2.	Applicant contends his discharge was improper/inequitable as the Navy should have recognized his alcohol and drug abuse and intervened with appropriate treatment, thereby preventing the misconduct for which he was separated.
3.	Applicant contends his post-service achievements warrant consideration for a discharge upgrade.

Decision

Date:  20120412	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 identified two decisional issues for the Board’s consideration.  The Board completed a thorough review of the circumstances that led to his discharge and the discharge process to ensure the pertinent standards of equity and propriety were met.  The Applicant’s record of service included eight NAVPERS 1070/613 (Page 13) retention warnings and eight nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, 5 specifications), Article 90 (Willful disobedience of superior commissioned officer), Article 91 (Insubordinate conduct toward a petty officer, 5 specifications), Article 92 (Failure to obey an order or regulation, 8 specifications), and Article 134 (General Article, 3 specifications).  There was no evidence of trial by courts-martial.  The record revealed two periods of time lost on the Applicant’s DD 214, which included: 5 Apr-22 Jul 2001 (108 days) and 30 Mar-13 Apr 2003 (14 days).  The Applicant also had an enlistment waiver (two Chart ‘C’ offenses: minor in possession of marijuana and minor in possession of alcohol) for offenses he committed prior to entering the Navy.  Based on the repeated and serious nature of the offenses committed by the Applicant in service, his command administratively processed him for separation per the Naval Military Personnel Manual (MILPERSMAN).  When notified of administrative separation processing using the administrative board procedure on 21 Feb 2003, the Applicant waived his rights to consult with a qualified counsel, submit a written statement, and request an administrative separation board.  The Applicant was separated from the Navy on 14 Apr 2003 with an Under Other Than Honorable Conditions discharge due to Pattern of Misconduct.

Issue 1:  (Nondecisional) The Applicant seeks a discharge upgrade to increase employment opportunities.  The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities as regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

Issue 2:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends his discharge was improper/inequitable as the Navy should have recognized his alcohol and drug abuse and intervened with appropriate treatment, thereby preventing the misconduct for which he was separated.  The NDRB conducted a detailed review of the Applicant’s records to determine whether his discharge met the pertinent standards for propriety and equity.  After thorough examination, the Board could find no evidence to support the Applicant’s claim of command impropriety.  Further, the Board could find no evidence nor did the Applicant provide any evidence to indicate he attempted to use the numerous services available for service members who undergo personal problems during their enlistment, such as the Navy Chaplain, Medical or Mental Health professionals, Navy Relief Society, Family Advocacy Programs, or even the Red Cross.  Ultimately, the Applicant is responsible for his behavior and cannot disregard his misconduct because his chain of command did not offer him treatment.  The NDRB recognizes that serving in the U.S. Navy is challenging.  However, all members of the Naval Services are expected to uphold the high standards of conduct as evidenced in our Core Values of Honor, Courage, and Commitment, regardless of the environment or mission in which assigned.  Per the MILPERSMAN, when a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under Honorable conditions.  An Under Other Than Honorable Conditions discharge is warranted when a Sailor commits or omits an act that constitutes a significant departure from the conduct expected from a 

member of the Naval Service.  The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant’s willful failure to meet the requirements of conduct expected of all Sailors, regardless of his grade and length of service, and falls short of what is required for an upgrade in the characterization of service.  Accordingly, the Board determined the Applicant’s issue to be without merit and did not provide a basis for which relief could be granted.  Relief denied.

Issue 3:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends his post-service achievements warrant consideration for discharge upgrade.  The NDRB considers post-service conduct in order to determine if the misconduct committed during active duty was indicative of the Applicant’s character or an aberration.  However, there is no law or regulation, that provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  The Applicant provided a personal statement and a letter of good standing from his substance abuse treatment program as evidence of post-service accomplishments.  Although his efforts to improve his life are noteworthy, he failed to provide adequate documentation and evidence on his behalf to support a thorough post-service conduct review.  He could have submitted documentation as specified in the Post-Service Conduct paragraph in the Addendum, however, completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis.  Without any additional post-service documentary evidence, the Board determined the awarded characterization of service shall remain Under Other Than Honorable Conditions.  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries and the administrative separation 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.  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, Automatic Upgrades, 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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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:   

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