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NAVY | DRB | 2007_Navy | ND0700228
Original file (ND0700228.rtf) Auto-classification: Denied
ex-SR, USN
ND07-00228
Current Discharge and Applicant’s Request
Application Received: 20061213   Characterization Received: OTHER THAN HONORABLE
Narrative Reason: MISCONDUCT Authority: MILPERSMAN 3630600

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to: ADMINISTRATIVE SEPARATION
Applicant’s Issues:       1. Education benefits
                          

Decision

 By a vote of the Characterization shall .     
By a vote of the Narrative Reason shall MISCONDUCT .
Date: 20 070927                                       Location: Washington D.C.


Discussion

 Issue 1: either which the Board cannot form the basis of relief for the Applicant, or the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum regarding .

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence ( to include evidence submitted by the Applicant ) to rebut the presumption . C ertain serious offens es warrant separation from the n aval service in order to maintain proper order and discipline. The summary of service clearly documents the Applicant ’s two NJP’s for violations of UCMJ Article s 86 (unauthorized absence), 92 (failure to obey a lawful order), and 128 (assault ). Regulations limit the Board’s review to a determination of the propriety and equity of the discharge. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considers his discharge proper and equitable.

For the edification of the Applicant, the NDRB does not have the authority to change a narrative reason for separation to “ Administrative Separation ” as requested. The MilPersMan designates specific phraseology to be used in block 28 of the DD-214, “Administrative Separation” is no an allowable entry. In the Applicant’s case t he separation process was in strict compliance with the Naval Military Personnel Manual. The Applicant was properly processed for separation by reason of misconduct due to the commission of a serious offense . T he summary of service clearly documents the Applicants violation s of UCMJ Article s 92 (failure to obey a lawful written order) and 128 (assault) . Violations of UCMJ Article s 92 and 128 each constitute the “commission of a serious offense ” which is punishable by up to a dishonorable discharge and up to two years of imprisonment if adjudicated by a Courts Martial . The separat ion authority directed that that Applicant be discharged by reason of misconduct due to the commission of a serious . The Naval Military Personnel Manual, Article 3630600 for the period in question directs that Block 28 contain the word “MISCONDUCT” when separating under these conditions.


Summary of Service

Prior Service:
 Inactive: US N R (DEP)      19950420 - 19950612              Active:         
Period of Service Under Review:
 Date of Enlistment: 19950613      Years Contracted : ; Extension:                   Date of Discharge: 19960726
Length of Service : 01 Yrs 01 Mths 13 D ys                            Lost Time : Days UA: 1 4
Education Level:         Age at Enlistment:       AFQT: 35          Highest Rank /Rate : SR
Evaluation marks (# of occasions):       Performance: 2.0                   Behavior: 2.0    OTA: 2.0 (1)
Awards and Decorations ( per DD 214): NATIONAL DEFENSE SERVICE MEDAL, MERITORIOUS UNIT COMMENDATION, ARMED FORCES EXPEDITIONARY MEDAL


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

 19951128 :        CO's NJP -- Viol UCMJ Art. 12 8 – ( Assault consummated by battery ) Punching shipmate in face on 19951127 . Awarded - FOP ( $ 427.00 for 2 months); RIR ( E-1 ); Restr ( 45d ays); Extra duties ( 45 days) .
19960402:        Applicant to unauthorized absence at 0715 on 19960402.

19960403:        Applicant from unauthorized absence at 0830 on 19960403 (1day/surrendered).

19960430:        Applicant to unauthorized absence.

 19960513:        Applicant from unauthorized absence, apprehended.

19960527 :        CO's NJP - Viol UCMJ Art. 86 (unauthorized absence) from 19960430 until apprehended 19960513 ( 13 d a ys ) ; V iol UCMJ Art. 92 (f ailure to obey a lawful order ) on 19960306 , wearing civilian clothes . Awarded - FOP ($ 400.00 f or 1 month); Restr ( 40 days); Extra duties ( 40 days).

Discharge Process

 Date Notified:                                       19960630
Reason for Discharge:     -
        
        
Least Favorable Characterization:        Other Than Honorable

Date Applicant Responded to Notification:                  19960630
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                        
         Administrative Board                       
        
Commanding Officer Recommendation (date):        Other Than Honorable ( 19960707 )
 Separation Authority (date):     COMCRUDESGRU THREE ( 19960715 )
 Reason for discharge directed: 
Characterization directed:     
Date Applicant Discharged:       19960726


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), Change 9, effective
22 Jul 94 until 02 Oct 96, 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 92 and 128 .




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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