ex-AOAR, USN
                                 ND07-00695

                  Current Discharge and Applicant’s Request

Application Received:  20070501   Characterization Received:
Narrative Reason:  MISCONDUCT     Authority:  MILPERSMAN 3630600

Applicant’s Request:   Characterization change to:
                 Narrative Reason change to:
Applicant’s Issues:    1. Request medical benefits from the VA

                                  Decision

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  MISCONDUCT.

Date:  20071213              Location:  Washington D.C
Representation:

                                 Discussion

Issue 1 -   which the Board does not have the authority to grant the relief
for which the Applicant petitioned.  The Applicant is directed to the
attached Addendum for additional information regarding Service Benefits and
Medical Conditions and Misconduct.

The following is provided for the edification of the Applicant.  Normally,
to permit relief, a procedural impropriety or inequity must have occurred
during the discharge process for the period of enlistment in question.  The
Board discovered no impropriety or inequity after a review of Applicant’s
case.  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 could 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.  As of this time, the Applicant has not provided any post-
service documentation to consider mitigating the misconduct 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

                              Summary of Service

Prior Service:
Inactive: USNR (DEP)   19940627 - 19941101         Active:
Period of Service Under Review:
Date of Enlistment: 19941102 Years Contracted:  ; Extension:        Date of
Discharge:  19960613
Length of Service:  01  Yrs  05  Mths  16  Dys     Lost Time:  Days UA:  56
 Days Confined:
Education Level:       Age at Enlistment:    AFQT:  62   Highest Rank/Rate:
 AOAA
Evaluation marks (# of occasions):      Performance:  NOT FOUND
Behavior:  NOT FOUND         OTA:  NOT FOUND
Awards and Decorations (per DD 214):  NDSM




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

19960307:   NJP -- Viol UCMJ Art. 86 – Unauthorized absence 0700, 19951129
           until 1130, 19960124; viol UCMJ Art. 92 – Failure to obey a
           lawful order by wrongfully having drug paraphernalia in his
           possession on a military installation; viol UCMJ Art. 112a (2
           Specs) wrongfully used marijuana.
      Awarded - FOP ($425.00) for (2 months) suspended for 6 months; RIR (E-
           1); Restr for (45 days); Extra duties (45 days).

19960430:   Applicant requested to waive Administrative Board and not to
           submit a statement.

                              Discharge Process

Date Notified:                          19960308
Reason for Discharge:   -
       -

Least Favorable Characterization:

Date Applicant Responded to Notification:          19960404
Rights Elected at Notification:
      Consult with Counsel
      Obtain Copies of Documents
      Submit Statement(s) (date)              (WAIVED 19960430)
      Administrative Board               (WAIVED
 19960430)
      GCMCA review

Commanding Officer Recommendation (date):     (19960503)
Separation Authority (date): BUPERS WASHINGTON DC (19960529)
              Reason for discharge directed:  - ABSENT WITHOUT LEAVE
              Characterization directed:
Date Applicant Discharged:   19960613

      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.

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.





                  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, provided 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 granted 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.

Employment/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