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NAVY | DRB | 2007_Navy | ND0700350
Original file (ND0700350.rtf) Auto-classification: Denied
ex-ATAN, USN
ND07-00350
Current Discharge and Applicant’s Request
Application Received: 20070125   Characterization Received:
Narrative Reason: MISCONDUCT - COMMISSION OF SERIOUS OFFENSE     Authority: MILPERSMAN 1910-142

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change :

Applicant’s Issues:       1. Inequitable based on isolated incident.
                           2. Inequitable – does not reflect true character of Applicant.
                           3. Inequitable – not recent or habitual.
                           4. Inequitable – Applicant has no intent to abuse drugs.

Decision

 Date: 2008 0227             Location: Washington D.C         R epresentation :

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

 Issue s 1, 2, 3, and 4 ( ): Despite a servicemember’s prior record of se rvice certain serious offenses even though isolate d, warrant separation from the n aval service in order to maintain proper order and discipline . The characterization of service is a description of the total service provided during the member’s enlistment. 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 (or general under honorable conditions) . A n under other than honorable conditions d ischarge 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 his nonjudicial punishment for violations of UCMJ Article s 92 (2 specifications) and 115. Violations of UCMJ Article 92 constitute the “commission of a serious offense”, the discharge basis in this case. This specific violation is punishable by a bad conduct discharge and up to six months of imprisonment for each specification, if adjudicated by a Courts Martial. The record clearly reflects the Applicant’s willful misconduct and the Applicant admitted to knowingly violating the orders for which he was punished at nonjudicial punishment. The Applicant was notified of his impending discharge and of his rights to consult counsel and be heard before an Administrative discharge board. The Applicant waived all rights and did not object to his discharge or characterization of service. After assuring compliance with MILPERSMAN 1910-142 the separation authority directed the Applicant’s discharge by reason of misconduct due the commission of a serious offense a service characterization of under other than honorable conditions. N othing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy . T he Board found the Applicant’s discharge proper and equitable.

The NDRB is authorized to consider post-service factors in the re characterization of a discharge . However, 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 the civilian life subsequent to leaving the servi ce. Normally, to permit relief a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. O utstanding post-service conduct to the extent that 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. The Applicant testified under oath that he has no outstanding warrants , has received one moving violation since discharge from the Naval service, he currently is employed 30 hours a week while attending college full time, and he has been a active leader in college clubs and organizations. He also provided an unofficial transcript documenting an Associate of Arts degree, a copy of his University of Texas ID, and a print out of his current class schedule at UT Austin as doc umentation of his post-service accomplishments. The Applicant's efforts need to be more encompassing than those provided. For example, the Applicant could have produced official evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, and certification of non-involvement with civil authorities. The Board determined that the documentation provided by the Applicant did not mitigate the misconduct which resulted in the Applicant’s discharge and characterization of his service .

In reviewing discharges, the Board presume s regularity in the conduct of g overnment al affairs unless there is substantial credible evidence ( to include evidence submitted by the Applicant ) to rebut the presumption . After a thorough review of the available evidence to include the Applicant’s s ummary of s ervice, m edical and s ervice r ecord e ntries, d ischarge p rocess and evid ence submitted by the Applicant the Board found that


Administrative Corrections to the Applicant’s DD 214

 The NDRB did note an administrative error on the original DD Form 214:

         “ Continuous honorable service from 01 OCT 25 - 04 OCT 24 ”
        
The NDRB will recommend to the C ommander, Navy Personnel Command , that the DD 214 be corrected as appropriate.


Summary of Service

Prior Service:
 Inactive: US N R (DEP)      20010330 - 20011024              Active:          20011025 - 20041024
Period of Service Under Review:
 Date of Enlistment: 20041025               Years Contracted :                Date of Discharge: 20050831
Length of Service : 00 Yrs 10 Mths 09 D ys                                              Lost Time :
Education Level:                  Age at Enlistment: 20              AFQT: 88          Highest Rank /Rate : AT3
Evaluation marks (# of occasions):       Performance: 3.0 (1)      Behavior: 3.0 (1)                 OTA: 3.0 (1)
Awards and Decorations ( per DD 214): SSDR, NDSM, GWOTSM, GCM


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

 20041025:        Applicant reenlisted for 5 years.

20050425:        Applicant reports for duty aboard USS KITTY HAWK (CV63), homeported in Yokosuka, Japan.
20050528:        Applicant de-screened for overseas duty following seven examinations with USS KITTY HAWK medical department resulting in diagnosis of adjustment disorder stemming from suicidal idealations. This record screening also highlighted false statements by the Applicant on enlistment documents and health screenings when questioned about mental history.

20050604:        Applicant admitted USS KITTY HAWK (CV 63) Medical for suicidal gestures, Applicant self referred asking for stomach to be pumped.

20050810 :        NJP - v iol UCMJ Art. 92 ( failure to obey and dereliction in performance of duties, 2 specs) ; Art. 115 (m alingering ) .
         Awarded - FOP ( $ 850.00 for 2 months); RIR ( E-3 ); Restr ( 30 days).

20050812:        Commanding Officer USS KITTY HAWK (CV 63) recommended the Applicant’s discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense to Commander, Carrier Strike Group Five. Commanding Officer’s comments: “During his tenure aboard USS KITTY HAWK, ATAN W_’s (Applicant) behavior has been nothing short of cowardly. He has completely rejected the Navy’s Core Values of Honor, Courage, and Commitment and instead has set himself on a course to break his oath to serve. He has feigned suicidal ideations and invoked his spiritual beliefs in a persistent attempt to escape his naval service.”


Discharge Process

 Date Notified:                                       20050810
Reason for Discharge:     -
Least Favorable Characterization:       

Date Applicant Responded to Notification:                  20050811
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                         ( NOT FOUND IN RECORD )
          Administrative Board                       
        
Commanding Officer Recommendation (date):        ( 20050812 )
Separation Authority (date):     COMMANDER, CARRIER STRIKE GROUP FIVE ( 20050813 )
 Reason for discharge directed:  -
Characterization directed:     
Date Applicant Discharged:       20050831


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) Authorization to release confidential information
Declaration of authorization and representative
Newspaper article

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 April 2005 until Present, Article 1910-142, 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 92 .


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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