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NAVY | DRB | 2007_Navy | ND0700916
Original file (ND0700916.rtf) Auto-classification: Denied
ex-OSSR, USN
ND07-00916
Current Discharge and Applicant’s Request
Application Received: 20070626   Characterization Received:
Narrative Reason: MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE   Authority: MILPERSMAN 3630600

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. Post-service conduct

Decision

 By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall MISCONDUCT .
Date: 20 080103             Location: Washington D.C         R epresentation :

Discussion

 Issue 1 ( ). The Applicant claims that he “started turning [his] life around” after his wife became pregnant. He claims to be a special deputy sheriff in Marion County, a firefighter and EMT and provides a variety of training certificates indicating qualifications relevant to first-responders in those fields. 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. While the Board commends the Applicant for his apparent rehabilitative conduct to date, as of this time, the Applicant has not provided sufficient post-service documentation to warrant 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 :

         “ MISCONDUCT ”

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)      19900413 - 19901213              Active:
Period of Service Under Review:
 Date of Enlistment: 19901214                        Years Contracted :                 Date of Discharge: 19930804
Length of Service : 02 Yrs 07 Mths 21 D ys                   Lost Time : Days UA: Days Confine d :
Education Level:                  Age at Enlistment:                AFQT: 68          Highest Rank /Rate : OSSA
Evaluation marks (# of occasions):       Performance: 2.8 ( 1 )       Behavior: 2.0 ( 1 )                  OTA: 2.80
Awards and Decorations ( per DD 214): NDSM, B ATTLE "E" , S W ASM, SSDR

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

 19920515 :        NJP -- Viol UCMJ Art. 117- Wrongfully use provoking words.
         Awarded - FOP ($ 200.00 ) for ( 2 months); RIR ( E-1 ) , susp 6 months ; Restr for ( 30 days); Extra duties ( 30 days).
19920515:        Retention Warning for wrongfully use provoking words, to wit: “You will get the same as [Martin Luther] King ” or words to that effect at the “ Glitter Club”, Naval Training Center, San Diego, California.

19920617 :        NJP -- Viol UCMJ Art. 86 (5 specs ) - Failure to go to restriction muster 19920523, 19920524, 19920526, 19920 530, and to Dental Clinic 19920606 .
         Awarded - Confinement on bread and water for 3 days.

19920902:        Medical Record: Reason for visit: Evaluation of Personnel Measured as Overweight/Obese (body fat 29%)
         Diagnosis: Exogenous Obesity
         Recommendation: Referred for additional medical work up; laboratory tests ordered; cleared for remedial physical training; dietary counseling.

19920902:        Applicant acknowledged assignment to physical conditioning program; requirement to attend a minimum of three sessions a week on at least three different days; and that failure to do so constituted an offense under the UCMJ.

 19921123:        RIR awarded and suspended at CO’s NJP of 19920515 vacated this date due to continued misconduct.
          [NDRB note: Appears to have been vacated after 6 month suspension period had run.]
19921123 :        NJP -- Viol UCMJ Art. 92 - Dereliction of duty by failing to remain awake w hile on Aft Air Watch 19921022.
         Awarded - Restr for ( 20 days); Extra duties ( 20 days) .
Discharge Process

 Date Notified:                                       19930528
Reason for Discharge:     -
         -
        
Least Favorable Characterization:       

Date Applicant Responded to Notification:                  19930528
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                        
         Administrative Board                       
        
Administrative Board Date :       19930610
Findings, by preponderance of the evidence:     3-0 VOTE MISCONDUCT - PATTERN OF MISCONDUCT                                                   SUPPORTED       
         3-0 VOTE -                                .
          3-0 VOTE                                            .
Recommendation on Separation:   BY 3-0 VOTE
Recommendation on Characterization:     BY 3-0 VOTE

Commanding Officer Recommendation (date):        ( 19930619 )
Separation Authority (date):     BUPERS ( 930721 )
 Reason for discharge directed:  -
Characterization directed:     
Date Applicant Discharged:       19930804

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) Training Certifications

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 5, effective 5 March 1993 until 21 July 1994, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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 92, Failure to obey order or regulation .

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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