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NAVY | DRB | 2007_Navy | ND0701247
Original file (ND0701247.rtf) Auto-classification: Denied

ex-FN, USN
Current Discharge and Applicant’s Request
Application Received: 20070911
Characterization of Service Received:
Narrative Reason for Discharge: MISCONDUCT
Authority for Discharge: MILPERSMAN 1910-140

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

Summary of Service

Prior Service:
 Inactive: US N R (DEP) 19960731 - 19970324                
Period of Service Under Review:
 Date of Enlistment: 19970325               Period of enlistment : Years             Date of Discharge: 20000218
Length of Service : Yrs Mths 24 D ys      Education Level:         Age at Enlistment: 18     AFQT: 39
Highest Rank /Rate : FN     Evaluation marks: Performance: 3.0 ( 2 )    Behavior:   2.0 ( 2 )         OTA: 2.83 (2)
Awards and Decorations ( per DD 214): Rifle , and

Periods of UA /Confinement : 19970905

NJPs :     19971010: Articles 86 (unauthorized absence) and 87 (missing movement). Awarded RESTR and EPD.
         19990211 : Articles 78 (accessory ), 81 (conspiracy), 82 (solicitation), 92 (failure to obey), 107 (false official statement), and 134 (obstructing justice) . Awarded - and .
         19990505: Article 107 (false official statement) and 132 (fraud) . Awarded - , , and . Susp - .

Retention Warnings:      19971010 – For VUCMJ Articles 86 and 87
                           19991223 – For failure to comply with OPNAVINST 1740.4 (dependent care certificate)

Administrative Corrections to the Applicant’s DD 214

The NDRB did note an administrative error on the original DD Form 214:

         “ JKA ”
        
The NDRB will recommend to the C ommander, Navy Personnel Command , that the DD 214 be corrected as appropriate.


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. Inequitable because based on Capts. Mast but actually discharged for non-compliance not misconduct .


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 .
Discussion

 Issue 1 ( ): Though the Applicant requested to be discharged for her inability to comply with the dependant child care certification. The MILPERS M AN directs that when a member is processed for administrative separation they shall be processed for all reasons. Additionally, the MILPERSMAN designates specific phraseology to be used in block 28 (narrative reason for separation) of the DD-214. The Applicant was properly processed for separation by reason of convenience of the government due to parenthood and misconduct due to a pattern of misconduct and the commission of a serious offense . The Applicant was properly notified of her administra tive processing wherein she cho se to waive her right to counsel and to a GCMCA review. T he summary of service clearly documents the Applicant ’ s three nonjudicial punishments for violations of UCMJ Articles 78 (accessory), 81 (conspiracy), 82 (solicitation), 86 (unauthorized absence), 87 (missing movement), 92 (failure to obey), 107 (false official statement, 2 specifications), 132 (fraud), and 134 (obstructing justice) . Violations of UCMJ Articles 87, 92 , 107, 132, and 1 34 each constitute the “commission of a serious offense ” which is punishable by up to a dishonorable discharge and up to five years of imprisonment for each specification if adjudicated by a Courts Martial. After ensuring the compliance with MILPERSMAN 1910-140 t he separat ion authority directed that that Applicant be discharged by reason of misconduct due to a pattern of misconduct and assigned a service characterization of general (under honorable conditions) . The Naval Military Personnel Manual, Article 3630600 for the period in question directs that Block 28 contain the word “MISCONDUCT” when separating under these conditions.

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 evidence submitted by the App licant the Board found that


Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 Dec 1997 until 21 Aug 2002, 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, Article 87, 92, 107, 132, and 134 .


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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