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

Docket No. ND12-01319

ex-DC2, USN

Current Discharge and Applicant’s Request

Application Received: 20120710
Characterization of Service Received:  (per DD 214) UNDER HONORABLE CONDITIONS (GENERAL)
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:	Expiration of Term of Service
	
Summary of Service
Prior Service:
Inactive:	USNR (DEP)	20050830 - 20060821  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  20060822	Age at Enlistment:  18
Period of Enlistment:  4 Years  24 MONTHS Extension
Date of Discharge:  20120321	Highest Rank/Rate:  DC2
Length of Service:  05 Years   07  Months   0 Days
Education Level:  12	AFQT:  81
Evaluation Marks:	Performance:  3.7 (6)	Behavior:  3.0(6)	OTA:  3.29

Awards and Decorations (per DD 214):	NMCAM (2) NAVY "E" (2) GCM NDSM KDSM SSDR (2) OSR (2) CGSOSR ESWS GWOTSM
Periods of UA/CONF:  NONE

NJP:  2

- 20100624:	Article 111 (Drunken or reckless operation of a vehicle, aircraft, or vessel; arrested by San Diego Police for driving a vehicle under the influence of alcohol)
	Awarded: RIR RESTR EPD  Suspended:  NONE

- 20111220:	Article 92 (Failure to obey order or regulation, on or about 18 December 2011 failed to obey an order by not returning to the ship for duty section muster)
	Article 86 (Absence without leave, 0630 to 1030 on 18 December 2011)
	Article 112 (Drunk on duty, on or about 18 December 2011 was found to be drunk while in a duty status)
	Awarded: FOP RIR RESTR EPD  Suspended:  NONE

SCM:  NONE	SPCM:  NONE	CC:  NFIR	Retention Warning Counseling:  NFIR

CIVIL ARREST:  1

- 20100610:	Charges:  Driving Under the Influence of Alcohol (DUI), San Diego Police Department

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:	☐

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

Applicant’s Issues

1.	The Applicant contends he was never issued and therefore did not violate a NAVPERS 1070/613 retention warning, which is required per Naval Military Personnel Manual (MILPERSMAN) Article 1910-140.  
2.	The Applicant contends he did not receive copies of his Administrative Separation Processing Notification Procedure (NAVPERS 1910/32) as per MILPERSMAN 1910-402 and was therefore denied due process. 
3.	The Applicant contends he was wrongly denied an Administrative Separation Board.
4.	The Applicant contends his record of service warrants consideration for an upgrade to Honorable.

Decision

Date:  20130314	DOCUMENTARY REVIEW	Location:  Washington D.C.	Representation:  NONE

By a vote of 5-0 the Characterization shall remain UNDER HONORABLE CONDITIONS (GENERAL).
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 Board did complete a thorough review of the circumstances that led to his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included two nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): Article 111 (Drunken or reckless operation of a vehicle, aircraft, or vessel), Article 92 (Failure to obey order or regulation), Article 86 (Absence without leave), and Article 112 (Drunk on duty).  Based on the offenses committed by the Applicant, his command administratively processed him for separation.  The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived his rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority review.  He was not eligible for an Administrative Separation Board.

Issues 1-2:  (Decisional) (Propriety)  RELIEF NOT WARRANTED.  The Applicant contends he was never issued and therefore did not violate a NAVPERS 1070/613 retention warning, which is required per MILPERSMAN Article 1910-140.  He also contends he did not receive copies of his Administrative Separation Processing Notification Procedure (NAVPERS 1910/32) as per MILPERSMAN 1910-402 and was therefore denied due process.  The NDRB was unable to review the Applicant’s complete discharge package, as it was not included in its entirety in his official service record.  The NDRB presumed regularity in governmental affairs in that the Separation Authority and Staff Judge Advocate review of the discharge package ensured that the Applicant was afforded all of his administrative rights pursuant to the separation process, to include having violated a Page 13 retention warning during his enlistment.  The Applicant did not submit any documentation to rebut any presumption of regularity in governmental affairs.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  Further, not receiving copies of NAVPERS 1910/32 does not invalidate the propriety of the Applicant’s administrative separation processing.  Relief denied.

Issue 3:  (Decisional) (Propriety)  RELIEF NOT WARRANTED.  The Applicant contends he was wrongly denied an Administrative Separation Board as he served greater than six years if his service in the Delayed Entry Program (DEP) is counted.  Pursuant to Navy regulations, a servicemember is not entitled to an Administrative Separation Board unless the least favorable characterization of service is Under Other Than Honorable Conditions or the servicemember has 6 or more years of total active and/or reserve military service.  The Applicant’s contention that his time served in the DEP in addition to his active duty time exceeds six years is incorrect.  Per Department of Defense Financial Management Regulation 7000.14-R, Volume 7A, Chapter 1, paragraph 010101 (Service Which is Creditable), D.12.b.(2), service is not creditable for service performed as an enlisted member in a Reserve Component under 10 USC 513 (Enlistments: Delayed Entry Program), other than a period of active duty.  So, while the Applicant was in the Naval Reserve while in the DEP, his time there was not creditable for service and so does not count toward the six years required to elect an administrative separation board if recommended for an Under 

Honorable Conditions (General) characterization of service.  The Air Force instruction cited by the Applicant is not applicable to U.S. Navy Sailors.  Since the Applicant had less than six years of service at the time of notification of administrative separation processing and was being recommended for an Under Honorable Conditions (General) characterization of service, he was not entitled to an Administrative Separation Board.  The NDRB determined his separation processing was proper.  Relief denied.

Issue 4:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends his record of service warrants consideration for an upgrade to Honorable.  The Applicant was administratively separated and not separated upon expiration of enlistment or fulfillment of service obligation.  The characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation.  Other considerations shall be given to the member’s length of service, grade, aptitude, and physical and mental condition.  Based on the Applicant’s record of service, the NDRB determined the Applicant’s service was honest and faithful but significant negative aspects of his conduct or performance of duty outweighed the positive aspects of his service record, and the awarded characterization of service was 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 Board found the discharge was proper and equitable.  Therefore, the awarded characterization of service shall remain UNDER HONORABLE CONDITIONS (GENERAL) 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 for additional information.

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 29, effective 10 November 2009 until Present, 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.

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 	RESTR - Restriction	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	CBW - 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