ex-MMFR, USN
                                 ND07-00731

                  Current Discharge and Applicant’s Request

Application Received:  20070511   Characterization Received:
Narrative Reason:  MISCONDUCT     Authority:  MILPERSMAN 1910-140

Applicant’s Request:   Characterization change to:
                 Narrative Reason change to:
Applicant’s Issues:    1. Enlist in the Army
                 2. Characterization not warranted by overall service
record
                 3. Post-service conduct

                                  Decision

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

Date:  20071213        Location:  Washington D.C    Representation:

                                 Discussion

Issue 1:   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 2 ().  A general discharge is warranted 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.  An other than honorable discharge
is warranted when the servicmember’s act or omission constitutes a
significant departure from the standards of the naval service.  The
Applicant’s service was marred by 3 nonjudicial punishment proceedings for
violations of Articles 86, 91, 92, 112a, 121, 123a and 134 of the UCMJ.
Most of the Applicant’s offenses each constitute a serious offense for
which a punitive discharge is authorized upon conviction at special court-
martial.  His wrongful use of marijuana alone normally results in other
than honorable discharge.  The Applicant’s conduct, which forms the primary
basis for determining the character of his service, can in no way be
considered “honest and faithful.”  To the contrary, it reflects his serious
and repeated criminal behavior, and a willful failure to meet the
requirements of his obligation to the Navy.  Consideration of an upgrade of
his characterization of service is neither warranted or appropriate.

Issue 3 ().  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 for the Board
to even consider mitigating the misconduct that resulted in the
characterization of discharge.

Issue 4 ().  The Board noted that the Applicant received another retention
warning after his third NJP and was not provided an opportunity to
rehabilitate himself as required by regulation when the reason for
discharge is misconduct – pattern of misconduct.  The Board found that the
other reasons for discharge, misconduct - commission of a serious offense
or misconduct - drug abuse, were both supported by the evidence and that
both constitute a more severe statement regarding the reason for separation
than does misconduct – pattern of misconduct.  Therefore, the Board found
that the Applicant was not prejudiced by the Separation Authority’s
decision to choose misconduct - pattern of misconduct as the primary reason
for separation rather than the more severe reasons.

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:

        “PATTERN OF 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: USNR (DEP)   20011117 - 20020924         Active:
Period of Service Under Review:
Date of Enlistment: 20020925 Years Contracted:  ; Extension:        Date of
Discharge:  20040427
Length of Service:  01  Yrs  07  Mths  03  Dys     Lost Time:  Days UA:
Days Confined:
Education Level:       Age at Enlistment:    AFQT:  53   Highest Rank/Rate:
 MMFA
Evaluation marks (# of occasions):      NOT FOUND IN RECORD   Awards and
Decorations (per DD 214):  NONE

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

20030702:   NJP -- Viol UCMJ Art. 121 – 20030416, Larceny from NEX of value
           $176.96.
      Awarded - FOP ($500.00) for (1 months); CCU (30 days).

20030702:   Retention Warning for larceny.

20031009:   NJP -- Viol UCMJ Art. 92 – 20030902, Violate order by wearing
           tongue stud in uniform; Art 112a – Abt 20030907, use marijuana.
      Awarded - FOP ($575.00) for (2 months); RIR (E-1); Restr (45 days),
           Extra duties (45 days).

20031104:   Applicant elected administrative discharge board.
      [Extracted from CO recommendation of 20040409.]

20040210:   Applicant waived administrative discharge board.
      [Extracted from CO recommendation of 20040409.]

20040407:   NJP -- Viol UCMJ Art. 86 – 20040406, failed to go; Art 91 –
           20040219, disrespectful towards senior chief petty officer; Art
           123a – 20040226, $157.96 worthless check to NEX; Art 134 (2
           specs) – 20041223, possessed false ID card and driver’s license.
      Awarded - FOP ($596.00) for (2 months); Restr (45 days), Extra duties
           (45 days).

20040407:   Retention Warning for violation UCMJ Art. 86 – Failure to go;
           Art 91 – Disrespect towards warrant, noncommissioned or petty
           officer; Art 123a – Worthless check; Art 134 – false pass
           offenses.
.
                              Discharge Process

Date Notified:                          20040409
Reason for Discharge:   -
       -
       -
Least Favorable Characterization:

Date Applicant Responded to Notification:          20040407
Rights Elected at Notification:
      Consult with Counsel
      Obtain Copies of Documents
      Submit Statement(s) (date)
      Administrative Board

Commanding Officer Recommendation (date):     (20040409)
Separation Authority (date): COMMANDER, SUBMARINE GROUP 2 (20040415)
              Reason for discharge directed:  -
              Characterization directed:
Date Applicant Discharged:   20040427

      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, Articles 91,
Insubordinate conduct toward warrant officer, noncommissioned officer, or
petty officer; 92, Failure to obey order or regulation; 112a, Wrongful use,
possession, etc., of controlled substances; 121, Larceny; 123a, Making,
drawing, or uttering check, draft, or order without sufficient funds; and
134, False or unauthorized pass offenses.



                  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