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NAVY | DRB | 2006_Navy | ND0601167

Original file (ND0601167.rtf) Auto-classification: Denied

ex-MASN, USN
ND06-01167

Current Discharge and Applicant’s Request

Application Received:                               20 060912
Characterization of Service:
Reason for Separation:                              MISCONDUCT -
Discharge Authority :                                MILPERSMAN 1910-112
Last Duty Assignment/ Command at Discharge:       NAS SECURITY DET KEFLAVIK ICELAND

Applicant’s Request:
         Characterization change to:
         Narrative Reason change to:
         Review Requested:
Representation:

Applicant’s Issues:
1. Characterization not warranted by overall service record
2. Post-service conduct

Decision

By a vote of the Characterization shall .
By a vote of the Reason shall - COMMISSION OF A SERIOUS OFFENSE.

Date of Decision:                                            20070809
Location of Board:                                  Washington D.C.
Complete Service Record:
Complete Medical Record:
Complete Discharge Package:

Regarding propriety, the Board found the discharge:
Regarding equity, the Board found the discharge:

Issue 1 ( ). When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. A general discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record. The Applicant’s service was marred by a nonjudicial punishment proceeding for violations of Articles 91, 107 and 134 of the UCMJ. Each of these violations constitutes a serious offense for which a punitive discharge is authorized upon conviction at special or general court-martial. The record supports the conclusion that the Applicant, then a married woman, engaged in an adulterous relationship with another servicemember, disobeyed an order to stop such contact with the servicemember (an order which, in part, was intended to protect the Applicant from her own potential further misconduct), and then lied about her disobedience when confronted by proper authority. The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her willful failure to meet the requirements of her contract with the U.S. Navy and falls far short of that required for an upgrade of her characterization of service. Relief is not warranted on this issue.

Issue 2 ( ). The following is provided for the edification of the Applicant. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety or inequity after a review of Applicant’s case. There is no law or regulation which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge 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. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided any post-service documentation to consider mitigating the misconduct that resulted in the characterization of discharge. Relief is not warranted on this issue.

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, Medical Record Entries, Elements of Discharge and evidence submitted by the Applicant, the Board found the Applicant’s discharge proper and equitable.

Summary of Service

Prior Service:
Inactive: USNR (DEP)                                20000626-20000628 -
Active: NONE
Period of Service Under Review :
Date of Enlistment:                                 20000629
Years Contracted :                                   ; 26 MONTH EXTENSION
Date of Discharge:                                  20040712
Length of Service:                                  04 Yrs 00 Mos 14 Days ^{Does not exclude lost time, if any}
Time Lost During This Period:

Education Level:
Age at this Enlistment:
AFQT:                                                 57
Highest Rate/Rank:                                   MA3

Performance Evaluation Averages (number of marks): ^{Extracted from Service Record and Applicant’s submission}
                  Performance : 4.0 ( 5 )      Behavior : 3.4 (5)                  OTA : 3.16 ( 3 )

Awards and Decorations (as listed on the DD Form 214): NAVY AND MARINE CORPS ACHIEVEMENT MEDAL (1), NAVY BATTLE "E" (1), NAVY GOOD CONDUCT MEDAL (2) ^{The Board noted that the Applicant did not have enough service time for a second award of the Good Conduct Medal}

Service Record Entries Related to Characterization of Service or Narrative Reason for Separation

20040614 :        NJP for violation(s) of UCMJ Article 91, Willfully disobeyed lawful order from MCPO; Article 134 , Adultery; Article 107 , False official statement. Award: F OP of $817.00 for 2 months, rest and extra duty for 45 days, reduction to E-3.

Elements of Discharge: [INVOLUNTARY]

Discharge Process :
Date Notified :                                        20040613
Reason for Discharge                                -
Least Favorable Characterization:

Date Applicant R esponded to N otification:                 20040616
Rights E lected at N otification :
Consult with Counsel
Administrative Board
Obtain Copies
Submit Statement(s) (date)
GCMCA Review

Recommendation of Commanding Officer (date):     NOT APPLICABLE
Separation Authority (date):      CO, U.S. NAVAL AIR STATION, KEFLAVIK ( 20040629 )
         R eason directed :
         Characterization directed:
Date Applicant Discharged:                         20040712

Additional Information Considered by Board

Type of d ocumentation submitted by t he Applicant and considered by the Board

        Document Type                                        #Pages
Related to Period of Service Under Review :
         Service/Medical Record :                            1 7
         Other Period of Service:
Related to Post-Service Period:
         Community Service :
         Education :
         Employment :
         Health /Medical :
         Character Statements:                               4
         Criminal Records Checks:
         Additional Statements from Applicant:
Other Documentation      (Describe Below)

Total Number of Pages:                            21

D escription of Other Documentation: None

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 02 until 25 April 2005, Article 1910-142 [formerly 3630605], 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 91 , Insubordinate conduct toward warrant officer, noncommis sioned officer, or petty officer; Article 107, False official statements ; and Article 134, Adultery .

ADDENDUM: Information for the Applicant

Complaint Procedures : If you believe that 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. 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 : Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the 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. If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his 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 Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board. 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 Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’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 Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. Additionally, the Board 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 subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, 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 “PTSD.” Only the Board for Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge 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. Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.

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 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.

Board Membership: The names and votes of the members of the 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

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NAVY | DRB | 2006_Navy | ND0601167

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