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NAVY | DRB | 2007_Navy | ND0700406
Original file (ND0700406.rtf) Auto-classification: Denied
ex-AO2, USN
ND07-00406
Current Discharge and Applicant’s Request
Application Received: 20070214   Characterization Received:
Narrative Reason: MISCONDUCT DUE TO COMMISSION OF A SERIOUS OFFENSE Authority: MILPERSMAN 1910-142

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. Reenlistment opportunities
                           2. Medical Condition that developed during service
                           3. Punishment too harsh for the offense
                           4. Post Service

Decision

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

Date: 20 071018                                       Location: Washington D.C.

Discussion

 Issues 1 & 2 : 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 .

Issue 3: ( ). The Applicant implies that he was treated unfairly by his command . The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was wrongfully charged and disciplined. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions. A n other than honorable conditions 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 conduct during the current period of service, which forms the primary basis for determining the character of his service was marred by the award of one nonjudicial punishments (NJP) for violations of the Uniform Code of M ilitary Justice (UCMJ), Article 92 [Failure to obey other lawful order (2 specifications)] and Article 134 ( Soliciting another to commit indecent acts . Violations of UCMJ Articles 92 and 134 are considered serious offenses for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial. An upgrade to honorable would be inappropriate.

Issue 4: ( ). The NDRB is authorized to consider post-service factors in the recharacterization 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, good conduct, or favorable endorsements in the civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. Outstanding 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 provided two character reference statements. The Applicant's efforts need to be more encompassing. For example, the Applicant could have produced evidence of a verifiable and continuous employment record , documentation of community service , documentation of educational pursuits, and c ertification of non-involvement with civil authorities . The Board determined that the documentation provided by the Applicant did not mitigate the circumstances that resulted in the characterization of discharge.

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

Administrative Corrections to the Applicant’s DD 214

 The NDRB did note administrative error(s) on the original DD Form 214 :

         “ CONTINUOUS ACTIVE SERVICE 19860909 to 19980714 ”
        
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)      19851019 - 19860908              Active:          19860909 - 19900906
Active:          19900907 - 19920809                        Active:          19920810 - 19960714
Active:          19960715 - 19980714
Period of Service Under Review:
 Date of Enlistment: 19980715               Years Contracted : ; Extension:          Date of Discharge: 19991117
Length of Service : 01 Yrs 04 Mths 02 D ys          Lost Time : Days UA: Days Confine d :
Education Level:         Age at Enlistment:       AFQT: 42          Highest Rank /Rate : AO1
Evaluation marks (# of occasions):       Performance: 3.3 ( 3 )       Behavior: 2.0 ( 3 )                   OTA: 2.71
Awards and Decorations ( per DD 214): NAVY ACHIEVEMENT MEDAL (3), NAVY UNIT COMMENDATION, NAVY "E" RIBBON, GOOD CONDUCT MEDAL (3), NATIONAL DEFENSE SERVICE MEDAL, ARMED FORCES EXPEDITIONARY MEDAL (3), SOUTHWEST ASIA SERVICE MEDAL W/BRONZE STAR, SEA SERVICE DEPLOYMENT RIBBON (5)

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

 19980715:        Reenlisted this date for a term of 2 years.
19990624 :        NJP -- Viol UCMJ Art. 92 – (2 Specs), Wrongfully entering into private business with members of the command on or about August 1998; viol UCMJ Art. 134 – Soliciting another to commit indecent acts on or about 19980829 .
         Awarded - FOP ($ 400.00 ) for ( 1 month); RIR ( E-5 ); Restr for ( 40 days); Extra duties ( 40 days).
19990629:        Applicant appealed NJP.

19990730:        Appealed denied .

Discharge Process

 Date Notified:                                       19990817
Reason for Discharge:     -
        
Least Favorable Characterization:       

Date Applicant Responded to Notification:                  19990826
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                        
         Administrative Board                       
         GCMCA review                               

Administrative Board Date :       19990922
Findings, by preponderance of the evidence:     BY - .
          BY SEPARATION WARRANTED.
Recommendation on Separation:   BY
Recommendation on Characterization:    BY

Commanding Officer Recommendation (date):        ( 19991008 )
Separation Authority (date):     COMMANDER, CRUISER-DESTROYER GROUP FIVE ( 19991108 )
 Reason for discharge directed:  -
Characterization directed:     
Date Applicant Discharged:       19991117

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) Daughter's Birth Certificate, Letter from R_ F. B_, M.D.,

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective
12 Dec 97 until 29 March 2000, 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 s 92 and 134.




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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