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

Docket No. ND11-02129

ex-SN, USN

Current Discharge and Applicant’s Request

Application Received: 20110920
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 3630600 [PATTERN OF MISCONDUCT]

Applicant’s Request:	Characterization change to:	GENERAL (UNDER HONORABLE CONDITIONS)
	Narrative Reason change to:	MINOR DISCIPLINARY INFRACTIONS

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	19921217 - 19930815  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  19930816	Age at Enlistment:  17 (PARENTAL CONSENT)
Period of Enlistment:  4 Years  NO Extension
Date of Discharge:  19960923	Highest Rank/Rate:  SM3
Length of Service:  03 Year(s)   01  Month(s)   08 Day(s)
Education Level:  12	AFQT:  45
Evaluation Marks:	Performance:  3.5 (3)	Behavior:  3.4 (3)	OTA:  3.53

Awards and Decorations (per DD 214):	NDSM, SSDR, SWASM (WITH 1 BRONZE STAR)

Periods of CONF:  NONE

NJP:  3

- 19940126:	Article 121 (Larceny - Steal a bottle of cologne, one Polaroid film, one Cross Colours shirt, a total of $68.00, property of the Navy Exchange System)
	Awarded: CCU (30 days)   Suspended:  NONE

- 19960329:	Article 92 (Failure to obey lawful written order)
	Article 111 (Reckless driving)
	Awarded: FOP   Suspended:  NONE

- 19960906:	Article 134 (Unauthorized pass offense)
	Awarded: RIR(to E-3) FOP RESTR EPD   Suspended:  NONE

SCM:  NONE	SPCM:  NONE	CC:  NONE

Retention Warning Counseling:  3

- 19930818:	For failure to disclose your pre-service civil/drug involvement:  6/93 Marijuana use (1x) while in DEP.

- 19931202:	For failure to adapt to the military environment, as evidenced by numerous minor infractions of rules and regulations including Article 86, UA from appointed place of duty; Article 92, Failure to obey a lawful general order specifically; repeated violations of the uniform regulations and grooming standards as well as failure to properly relieve the watch.

- 19950104:	For violation of Article 92, Failure to obey a lawful order, failure to abide by the Navy’s No Hazing Policy.

NDRB Documentary Review Conducted (date):	20110428
NDRB Documentary Review Docket Number:	ND11-01070
NDRB Documentary Review Findings:		Proper as issued and that no change is warranted.

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 9, effective 22 July 1994 until 2 October 1996, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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.	The Applicant contends that her youth and immaturity contributed to and mitigates her misconduct.
2.	The Applicant contends that her alcohol dependency contributed to and mitigates her misconduct. 
3.	The Applicant contends that psychological problems stemming from her sister’s death contributed to and mitigate the misconduct for which she was separated.

Decision

Date:  20120330    PERSONAL APPEARANCE HEARING	Location: Washington D.C.    Representation:  Private representative

By a vote of 5-0 the Characterization shall change to GENERAL (UNDER 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 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.  Although the Applicant’s service records are incomplete (missing separation documentation to include: notification of administrative separation and acknowledgment of rights forms, commanding officer comments and endorsement, and the Separation Authority decision letter), the NDRB completed a thorough review of the available documentation to determine whether the discharge met the pertinent standards of equity and propriety.  

The Applicant’s record of service included three NAVPERS 1070/613 (Page 13) retention-counseling warnings and three nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey an order or regulation), Article 111 (Drunken or reckless operation of a vehicle), Article 121 (Larceny, stole 1 bottle of cologne, one Polaroid film, one Cross Colours shirt, a total of $68 from the Navy Exchange), and Article 134 (False or unauthorized pass offense).  The service record also documents that the Applicant was admitted into the psychiatric ward (Naval Medical Center, Portsmouth VA) from 25 Jan to 01 Feb 1996 for evaluation and treatment due to a suicidal ideation/gesture resulting from personal stressors that included the death of the Applicant’s sister in Feb 1995.  Upon completion of psychiatric evaluation, the Applicant was diagnosed with: AXIS I - Alcohol Dependent with Polysubstance Abuse (by history); and AXIS II - Borderline Traits.  She was referred for Level III in-patient alcohol rehabilitation treatment, which she attended and completed from 11 Mar to 5 Apr 1996 (Alcohol Rehabilitation Center Norfolk, VA).  Based on the offenses committed by the Applicant, her command administratively processed her for separation.  Since the Board did not have the Applicant’s administrative separation documents available for review, the NDRB could not determine whether the Applicant exercised or waived her rights to consult with a qualified counsel, submit a written statement, or request an administrative separation board be held.  The separation program designator code HKA on the Applicant’s DD Form 214 indicates she waived her rights to the administrative board proceeding.  The Applicant was separated from the Navy on 23 Sep 1996 with an Under Other Than Honorable Conditions characterization of service due to a Pattern of Misconduct.  

Issues 1-2:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends that her youth, immaturity, and alcohol dependency contributed to and mitigate the misconduct for which she was separated.  While the Applicant may feel that these were the underlying causes of her misconduct, the record clearly reflects that she was responsible for her conduct and accountable for her actions.  The NDRB determined that the Applicant’s youth or age was not a mitigating factor in her misconduct; however, the Board did identify substantial mitigating circumstances that are addressed below (see Issue 3).  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.  The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects that the Applicant failed to meet the requirements of conduct expected of all Sailors, especially considering her grade and length of service.  After consideration of the available evidence, the NDRB determined this issue did not provide a basis for which relief should be granted.  Accordingly, relief denied.

Issue 3:  (Decisional) (Equity)  PARTIAL RELIEF WARRANTED.  The Applicant contends psychological problems stemming from her sister’s death contributed to and mitigate the misconduct for which she was separated.  The NDRB conducted an exhaustive review of the records and, in conjunction with the Applicant’s testimony, found evidence to support her contention that she sought and received assistance via the numerous services available for service members who undergo personal problems during their enlistments - to include the Navy Chaplain and Medical and Mental Health professionals.  Additionally, the NDRB determined that the treatment and support services that she received, coupled with the progress she made and the credible character references from members of the Applicant’s former command, corroborated her testimony regarding her mitigating factors and the harshness of the command environment at the time in which she was separated from service.  After careful review and consideration of all the facts and circumstances unique to the Applicant’s case, the NDRB determined that some form of relief was warranted based on the grounds of equity.  Accordingly, the NDRB voted unanimously to upgrade the Applicant’s discharge characterization of service to General (Under Honorable Conditions) but also voted unanimously to have the narrative reason for separation remain Pattern of Misconduct.  Full relief by having the narrative reason for separation changed to Minor Disciplinary Infractions was not granted, because Pattern of Misconduct more accurately describes why she was discharged.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service and service record entries, the NDRB found the discharge was proper but not equitable.  Therefore, based on the significant documentary evidence and testimony provided at the hearing, the NDRB determined that the Applicant warranted relief on the grounds of equity.  Therefore, the awarded characterization of service shall change to GENERAL (UNDER HONORABLE CONDITIONS), but the narrative reason for separation shall remain PATTERN OF MISCONDUCT.  The Applicant is directed to the Addendum for additional information.

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:  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