ex-AR, USN
                                 ND07-00707

                  Current Discharge and Applicant’s Request

Application Received:  20070502   Characterization Received:
Narrative Reason:  PATERN OF MISCONDUCT       Authority:   MILPERSMAN  1910-
140

Applicant’s Request:   Characterization change to:
                 Narrative Reason change to:
Applicant’s Issues:    1.  Request RE 4 Code change to permit reenlistment
in the Army


                                  Decision

By a vote of  the Characterization shall read.
By a vote of  the Narrative Reason shall read PATTERN OF MISCONDUCT.

Date:  20071213              Location:  Washington D.C
Representation:

                                 Discussion

Issue 1:  Applicant is requesting an upgrade and change in his RE 4 Code so
that he can reenlist in the Army.    which the Board does not have the
authority to grant the relief for which the Applicant petitioned.  The
Applicant is directed to the Addendum for additional information regarding
Reenlistment/RE-codes.

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

            Administrative Corrections to the Applicant’s DD 214

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

        “02  02  03”
        “GENERAL (UNDER HONORABLE CONDITIONS)”
        “MILPERSMAN 1910-142”
        “JKQ”
        “MISCONDUCT”

The NDRB will recommend to the Commander, Navy Personnel Command, that the
DD 214 be corrected as appropriate.



                             Summary of Service

Prior Service:
Inactive: NONE                    Active:
Period of Service Under Review:
Date of Enlistment: 19991230 Years Contracted:  ; Extension:        Date of
Discharge:  20020302
Length of Service:  02  Yrs  02  Mths  03  Dys     Lost Time:  Days UA:
Days Confined:
Education Level:       Age at Enlistment:    AFQT:  36   Highest Rank/Rate:
 AN
Evaluation marks (# of occasions):      Performance:  2.0 (1) Behavior:
2.0(1)       OTA:  2.67
Awards and Decorations (per DD 214):  AFEM, MUC, SSDR, BER

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

20010912:   NJP -- Viol UCMJ Art. 92 - Failure to obey a lawful order or
           regulation (government credit card abuse).
      Awarded - FOP (1/2 months pay) for (2 months); RIR (E-2); CCU for (30
           days).  FOP and RIR suspended for 6 months.

20020107:   Vacate suspended RIR.

20020107:   NJP -- Viol UCMJ Art. 134 (3 specs) - (1) Make and utter to the
           Navy Exchange a certain check, in the amount of $150.00, and did
           thereafter dishonorably fail to maintain sufficient funds in the
           bank on 20010801, (2) Make and utter to the Navy Exchange a
           certain check, in the amount of $150.00, and did thereafter
           dishonorably fail to maintain sufficient funds in the bank on
           20010831, (3) Make and utter to the Navy Exchange a certain
           check, in the amount of $150.00, and did thereafter dishonorably
           fail to maintain sufficient funds in the bank on 20010901, Art.
           92 - Failure to obey an order or regulation on 20011213
           (fraternization).
      Awarded - RIR (E-1).

UNDATED:    Retention Warning for fraternization and sexual misconduct.

                              Discharge Process

Date Notified:                          20020111
Reason for Discharge:   -
       -
Least Favorable Characterization:

Date Applicant Responded to Notification:          20020111
Rights Elected at Notification:
      Consult with Counsel
      Obtain Copies of Documents
      Submit Statement(s) (date)
      GCMCA review

Commanding Officer Recommendation (date):     (20020226)
Separation Authority (date): COMCRUDESGRU THREE (20020308)
              Reason for discharge directed:  -
              Characterization directed:
Date Applicant Discharged:   20020302

      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 31, dated 20
February 2001, effective 25 January 2001 until 21 August 2002, 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.


                  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