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NAVY | DRB | 2007_Navy | ND0700132
Original file (ND0700132.rtf) Auto-classification: Denied
ex-OSSN, USN
ND07-00132
Current Discharge and Applicant’s Request
Application Received: 20061108   Characterization Received:
Narrative Reason: MISCONDUCT-COMMISSION OF A SERIOUS OFFENSE Authority: MILPERSMAN 3630600

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. Personal problems (family issues) - Equity
                           2. Counseling was not offered - Equity

Decision

 By a vote of the Characterization shall .     
By a vote of the Narrative Reason shall MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE .
Date: 20 070912 Location: Washington D.C. The Board found that

Discussion

 Issue 1 ( ) : The Applicant contends that his problems in the Navy can be attributed to his personal family problems. While he may feel that his family problems was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.

Issue 2 ( ) : In the Applicant ’ s case, the Board could discern no impropriety or inequity and therefore considered the Applicant ’ s discharge proper and equitable. Specifically, Applicant alleged that counseling was not offered to him. While t he record contains no evidence of counseling being provided, there is also no evidence there was any wrongdoing by the Applicant ’ s Commanding Officer or anyone else for that matter in the discharge process. For the edification of the Applicant, 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 ( unauthorized absence for more than 30 days. ) The Board presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. As such, this Board presumed that the Applicant ’ s discharge was regular in all respects.

Summary of Service

Prior Service:
 Inactive: US N R (DEP)      19851016 - 19860107     
Active: USN               19860108 - 19900104

Period of Service Under Review:
 Date of Enlistment: 19900105      Years Contracted : 5 ; Extension:         Date of Discharge: 19920 4 29
Length of Service : 2 Yrs 3 Mths 25 D ys Lost Time : 61 days U/A Days Confine d :
Education Level: 12       Age at Enlistment: 22     AFQT: 55          Highest Rank /Rate : OS 3
Evaluation marks (# of occasions):       Performance: 3.15 ( 4 )      Behavior: 3.40 ( 4 )         OTA: 3.15
Awards and Decorations ( per DD 214): NAVY UNIT COMMENDATION; NATIONAL DEFENSE SERVICE MEDAL; SOUTHWEST ASIA SERVICE MEDAL (W/2 BRONZE STAR); SEA SERVICE

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

 19901117:        Applicant unauthorized absence at 2300 this date.
19901217:        Applicant declared deserter this date

19910117:        Applicant from unauthorized absence at 1800 this date (61 days/surrendered)
19910118:        Applicant declared deserter this date

19910204:        Applicant from unauthorized absence at 1600 this date (46 days/surrendered).
19910313:        Counseling: Applicant advised that he does not meet the Navy’s physical fitness standards due to obesity. Advised that the condition has been verified by a medical representative who has indicated that this obese condition is not considered a physical disability and that there is no known medical condition that precludes member from meeting the prescribed st andards. Advised that member has six months to attain prescribed standards. Member may not be advanced to next higher grade, may not be frocked, may not be recommended for advancement or reenlistment, not eligible for PCS/TEMDUINS or TAD, will receive special evaluation, and may be processed for separation if significant progress is not demonstrated.

19910621:        Summary Court-Martial.
         Charge: Violation of the UCMJ, Article 86 (5 specs from appt place of duty):
         Finding: to Charge and the specification thereunder, guilty.
         Sentence: Forfeiture of $500.00, reduced to E-3 and Restriction for two months.
         CA action 19910701: Sentence approved and ordered executed.

19910626:        Applicant unauthorized absence from 0600 to 0700 this date.
19911118:        Applicant unauthorized absence from 0500 to 0830 this date.

 19911222:        Applicant to unauthorized absence at 0700 on this date.

19911224:        Applicant from unauthorized absence at 0500 this date (2 days/surrendered).
19920219:        CO's NJP -- Viol UCMJ Art. 92 - Failure to obey a lawful order.
         Awarded - RIR to paygrade E-2; Restr for (days) (All punishment suspended for 6 months))
Discharge Process

 Date Notified:                                       19920224
Reason for Discharge:     -
        
Least Favorable Characterization:       

Date Applicant Responded to Notification:                  19920224
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                         )
          Administrative Board                       
         GCMCA review                               

Commanding Officer Recommendation (date):        ( 19920421 )
Separation Authority (date):     COMNAVPERSCOM ( 19910429 )
 Reason for discharge directed:  -
Characterization directed:     
Date Applicant Discharged:       19920429







Types of Documents Submitted by Applicant and Considered By Board

 Related to Military Service:      Service and/or Medical Record:            Other Records:

Related to Post-Service Period:         
         Employment:                        Finances:                          Education:               
         Health/Medical Records:                   Substance Abuse:                           Criminal Records:       
         Family/Personal Status:                   Community Service:                References:              
        
Additional Statements From Applicant:    From Representative:
Other Documentation (Describe)      

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until 04 Mar 93, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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 86(unuathorized absence greater than 30 days.)


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 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 : Subsequent to a document review, former members are eligible for a personal appearance hearing, provi ded 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 grante d 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.
Employmen t / 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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