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NAVY | DRB | 2007_Navy | ND0701244
Original file (ND0701244.rtf) Auto-classification: Denied

ex-OSSR, USN
Current Discharge and Applicant’s Request
Application Received: 20070912           
Characterization of Service Received:
Narrative Reason for Discharge: MISCONDUCT - PATTERN OF MISCONDUCT
Authority for Discharge: MILPERSMAN 3630600

Applicant’s Request:     Characterization change to:
                           Narrative Reason change:

Summary of Service

Prior Service:
 Inactive: US N R (DEP)      19881116 - 198907XX – Refuse to obligate
                           19900515 – 19900724 COG           
Period of Service Under Review:
 Date of Enlistment: 19900725               Period of enlistment : Years             Date of Discharge: 19930402
Length of Service : Yrs Mths 07 D ys      Education Level:         Age at Enlistment:       AFQT: 71
Highest Rank /Rate : NA     Evaluation marks: Performance: 2.5 ( 3 )    Behavior: 2.5 ( 3 )                 OTA: 3.0 (3)
Awards and Decorations ( per DD 214): and

Periods of UA /Confinement : 19920212 – 19920228 , 19920822 – 19920825 (Abu Dhabi, UAE), and 19920911 – 19921104 (confinement )

NJPs :     19910110: Art icle 92 (failure to obey) . Awarded - , , . Susp – for six months .
         19920122 : Articles 81 (conspiracy) and 134 (tampering with military ID card) . Awarded - , , and .
        
S CM :     19920212: Art icle 92 (failure to obey by possessing and concealing a dangerous weapon) . Sentence - and . 19920305 – Findings dismissed without prejudice.

SPCM :    19920911 : Art icle s 86 (unauthorized absence) and 87 (missing movement) . Sentence – Confinement (65 Days, 37 days suspended for six months) and FOP .

Retention Warnings:     19910103: Violation of UCMJ Article 92 (failure to obey).
                           19920122: For conspiracy and tampering with military ID .

Types of Documents Submitted

 Related to Military Service:      DD 214:          Service and/or Medical Record:   Other Records:

Related to Post-Service Period:  
         Employment:                        Finances:                          Education /Training :     
         Health/Medical Records:           Substance Abuse:                           Criminal Records:       
         Family/Personal Status:           Community Service:                References:              
        
Additional Statements From Applicant:             From Representat ion :              From Member of Congress:
Other Documentation (Describe)



DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

 1. Court Martial ordered a general discharge but base legal forced to sign an OTH after holding in Spain for eight months.

Decision

Date: 20 08 0131             Location: Washington D.C         R epresentation :

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

 Issue 1 ( ): The Applicant contends that he was assigned a general discharge by his court martial then forced to sign a other than honorable discharge after being held for eight months. Based upon the record, the Applicant’s court martial did not adjudicate a discharge nor assign a characterization of service. Furthermore once the Applicant’s court martial processing was complete the Applicant then was administratively processed for separation beginning less then three months prior to his discharge. During the Applicant’s administrative discharge he was notified of his impending discharge and of his rights to consult counsel and be heard before an Administrative discharge board. The Applicant waived all rights and did not object to his discharge or the characterization of his service. After assuring compliance with MILPERSMAN 3630600 the separation authority directed the Applicant’s discharge by reason of misconduct due to a pattern of misconduct with a service characterization of other than honorable. N othing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy. A other than honorable characterization of service 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 service was marred by two retention warnings, two nonjudicial punishments for violations of UCMJ Articles 81, 92 and 134 and a s pecial court martial for violations of UCMJ Articles 86 and 87 (missing movement) . These nonjudicial punishments and s pecial court martial form the basis for the Applicants administrative discharge based on a pattern of misconduct which is defined as t hree or more punishments during the same enlistment. For the information of the Applicant, v iolations of UCMJ Article s 87 and 92 carry a penalty of a dishonorable discharge and up to 2 year s of imprisonment for each specification if adjudicated by a court martial. The Applicant’s conduct reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade in his characterization of service.

In reviewing discharges, the Board presume s regularity in the conduct of g overnment al affairs unless there is substantial credible evidence ( to include evidence submitted by the Applicant ) to rebut the presumption . After a thorough r eview of the available evidence to include the Applicant’s s ummary of s ervice, m edical and s ervice r ecord e ntries, d ischarge p rocess and evid ence submitted by the Applicant the Board found that


Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C, Change 5, effective 05 Mar 93 until 21 Jul 94), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - A 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 s of the UCMJ, Article s 87 and 92 .


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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