ex-FA, USN
ND06-00742

Current Discharge and Applicant’s Request

Application Received:  20060508 	Characterization Received:  
Narrative Reason:  MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE Authority:  MILPERSMAN 3630600

Applicant’s Request:	Characterization change to:   or general (under honorable conditions)
			Narrative Reason change to: 
Applicant’s Issues:	1. Did not commit the misconduct for which discharged
			2. Post-service conduct

Decision

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

Date:  20071011  		Location:  Washington D.C. 	Representative:  aMERICAN lEGION	
Discussion

Issue 1 ().  There is credible evidence in the record to support the conclusion that the Applicant’s discharge was based in fact.  The Board carefully reviewed the evidence, and noted that the Applicant fully contested the evidence of his unauthorized absence at his discharge board.  The Board was satisfied that the Applicant’s misconduct was factually based and supported by a preponderance of the evidence, that separation under the circumstances was warranted, and that the characterization of service was appropriate.

Issue 2 ().  The Applicant asserts that he has become a productive citizen.  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 in order to corroborate claims of good post-service conduct 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 

Summary of Service

Prior Service:
Inactive: USNR (DEP)	19900330 - 19900718  		Active:   	
Period of Service Under Review:
Date of Enlistment: 19900719	    Years Contracted:  ; Extension:    		Date of Discharge:  19930623
Length of Service:  02  Yrs  11  Mths  05  Dys	Lost Time:  Days UA:  60  Days Confined:  
Education Level:  	Age at Enlistment:  	AFQT:  27	Highest Rank/Rate:  FN
Evaluation marks (# of occasions):	Performance:  3.2(3)	Behavior:  3.1(3)	 	OTA:  3.40 	(4.0 scale)
Awards and Decorations (per DD 214):  Navy Unit Commendation, Combat Action Ribbon, Sea Service Deployment Ribbon, Southwest Asia Service Medal(2), National Defense Service Medal, Kuwaiti Liberation Medal

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

19920527:	Applicant transferred from USS IWO JIMA (LPH 2).

19920529:	Civil conviction:  Circuit Court of City of Norfolk, guilty of trespassing.  Nolle proseque entered on charge of burglary.  Sentence:  Unsupervised probation for 1 year, court costs, $100.00 restitution to victim.

19920720:	Applicant to unauthorized absence from USS IWO JIMA (LPH 2) this date.

19920727:	Applicant attached to Naval Amphibious Base, Little Creek, Norfolk as transient.

19920820: 	Applicant declared deserter.  DD Form 553 promulgated by USS IWO JIMA (LPH 2).

19920918:	Applicant from unauthorized absence at 0915 this date, at PSD Naval Station, Norfolk.

19920923:	PersDet Little Creek advised USS IWO JIMA (LPH 2) via naval message of Applicant’s presence onboard.

19921028:	Applicant transferred from Naval Amphibious Base, Little Creek and joined to USS IWO JIMA (LPH 2).

19921028:	NJP -- Viol UCMJ Art. 86 – Unauthorized absence from TAD unit from 19920720 – 19920918.
	Awarded - FOP ($440.00) for (2 months); RIR (E-2); Restr for (60 days).

Discharge Process

Date Notified:					19921106
Reason for Discharge:	 - 
Least Favorable Characterization:	

Date Applicant Responded to Notification:		19930107
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			  (None found in record)
	Administrative Board			

Administrative Board Date:	19930514
              Findings, by preponderance of the evidence:	BY   .
	BY  SEPARATION  WARRANTED.
              Recommendation on Separation: 	BY        
              Recommendation on Characterization:	BY  

Commanding Officer Recommendation (date):	 (19930525)

Separation Authority (date):	BUPERS (19930617)
              Reason for discharge directed:	 - 
              Characterization directed:	
Date Applicant Discharged:	19930623

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 Article (NAVPERS 15560C), Change 5, Effective 05 Mar 93 Until 21 Jul 94, Article 3630600, Separation of Enlisted Personnel b 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 86, Absence without leave (for greater than 30 days).

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