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NAVY | DRB | 2007_Navy | ND0700404
Original file (ND0700404.rtf) Auto-classification: Denied
ex-EMFN, USN
ND07-00404
Current Discharge and Applicant’s Request
Application Received: 20070214 Characterization Received:
Narrative Reason: PATTERN OF MISCONDUCT                   Authority: MILPERSMAN 1910-140

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. Characterization not warranted by overall service

Decision

 By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall PATTERN OF MISCONDUCT .
Date: 20 071018                    Location: Washington D.C.

Discussion

Issue 1 ( ). When the service of a member of the U.S. Navy has been honest and faithful, but significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record, it is appropriate to characterize that service as general (under honorable conditions ) . An under other than honorable conditions discharge is warranted when a Sailor’s behavior constitutes a significant departure from that expected of naval members. The Applicant’s service was marred by a retention warning and 2 NJPs for violations of Articles 91, 92 and 117 of the UCMJ. The NDRB advises the Applicant that each of his violations of Articles 91 and 92 constitute a serious offense for which an other than honorable characterization of service is warranted and for which a punitive discharge is authorized upon conviction at special or general court-martial. The Applicant was properly notified of the potential adverse characterization and chose not to exercise his right to an administrative discharge board. There is no indication in the record that the Separation Authority failed to consider all relevant factors, including the Applicant’s overall service, in determining that an under than honorable conditions discharge was warranted.

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, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that

Summary of Service

Prior Service:
 Inactive: US N R (DEP)      20010123 - 20010220              Active:         
Period of Service Under Review:
 Date of Enlistment: 20010221      Years Contracted : ; Extension:          Date of Discharge: 20040817
Length of Service : 03 Yrs 05 Mths 27 D ys                            Lost Time : Days UA: Days Confine d :
Education Level:                  Age at Enlistment:                AFQT: 53                   Highest Rank /Rate : E M 3
Evaluation marks (# of occasions):       Performance: 3.7 ( 4 )       Behavior: 3.0 ( 4 )                   OTA: 3.22
Awards and Decorations ( per DD 214): NATIONAL DEFENSE SERVICE MEDAL

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

 20021026 :        NJP -- Viol UCMJ Art. 92 – (2 Specs), Failure to obey other lawful written order; viol UCMJ Art. 91 – Disrespectful in language and deportment toward a petty officer; viol UCMJ Art. 117 – Provoking speeches.
         Awarded - FOP ( $ 1/2 pay ) for ( 2 months); RIR ( E-2 ); Restr for ( 45 days); Extra duties ( 45 days) . FOP, RIR, 15 days Restriction and Extra Duties susp 6 months .
20021026:        Retention Warning f or violation of UCMJ violations subject of NJP this date.

20040710:        Medical Record: Reason for visit: Difficulty controlling anger with Chief (is verbally abuse like father, “drives me crazy,” yells “every day”. On watch 30 minutes past relief, left to find relief, now facing NJP.
         Diagnosis: Cluster B traits exacerbated by work environment
         Recommendation: C/B therapy, refer to Chaplain
20040728:        NJP -- Viol UCMJ Art. 91 – Insubordinate conduct toward a chief petty officer; viol UCMJ Art. 92 (2 specs) – Dereliction of duty and Failure to obey a lawful order.
         Awarded - FOP ($875.75) for (2 months); R IR (E-3); Restr for (45 days).
Discharge Process

 Date Notified:                                       20040729
Reason for Discharge:     -
Least Favorable Characterization:       

Date Applicant Responded to Notification:                  20040729
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                        
         Administrative Board                       

Commanding Officer Recommendation (date):        ( 20040729 )
Separation Authority (date):     COMPHIBGRU THREE ( 20040806 )
 Reason for discharge directed:  -
Characterization directed:     
Date Applicant Discharged:       20040817

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), re-issued October 2002, effective 22 Aug 2002 until 25 April 2005, Article 1910-140 (formerly 3630600), 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 .

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 s 91 , Insubordinate conduct toward warrant, noncommissioned, or petty officer; 92, Failure to obey order or regulation and Willful dereliction in the performance of duties .

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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