, ex-FC3, USN
ND06-00980

Current Discharge and Applicant’s Request:

Application Received:  				20060719
Narrative Reason for Separation:			
Character of Service:				
Discharge Authority:				MILPERSMAN 3630605
Last Duty Assignment/Command at Discharge:	USS STUMP (DD 978) 

Applicant’s Request:
	Narrative Reason change to: 		REQUESTED CHANGE BUT DID NOT SPECIFY
	Characterization change to:		
	Review Requested:			
Representation:  					

Decision:

Date of Decision:					20070523
The Discharge shall change to:			 
						sECRETARIAL AUTHORITY
Regarding propriety, the Board found the discharge:	
Regarding equity, the Board found the discharge:	
 (or BCD only) The Board found that clemency was: 	
Vote (characterization/reason)			/
Location of Board:				Washington D.C.
Complete Service Record:				YES
Complete Medical Record:			yes
Discharge Package Complete:			yes

Summary of Service:

Prior Service:
Inactive: USNR (DEP)				19931007-19940906     
Active:        		               		NONE     
Period of Service Under Review:
Date of Enlistment:  				19940907     
Years Contracted:  				;        
Date of Discharge:				20000203
Length of Service:				05  Yrs  04  Mos  28  Days
Time Lost During This Period:			NONE      

Education Level:  				
Age at this Enlistment:  				
AFQT:  						69     
Highest Rate/Rank:				FC2

Performance Evaluation Averages (number of marks):
Performance/Behavior/OTA:			4.33 (6)  3.17 (6)  3.70
	Extracted from:  Supporting Documents   Other:       

Awards and Decorations (as listed on the DD Form 214):  SEA SERVICE DEPLOYMENT RIBBON (2); MERITORIOUS UNIT COMMENDATION; GOOD CONDUCT MEDAL; NATIONAL DEFENSE SERVICE MEDAL; ARMED FORCES EXPEDITIONARY MEDAL     

Service Record Entries Related to Characterization of Service or Narrative Reason for Separation

20000203:	NJP for violation(s) of UCMJ:
	Article 86:  On or about 2000, 000125, without authority, go from appointed place of duty, and did remain so absent until 0630, 000126.  .
	Award:  Restriction and extra duty for 30 days, reduction in rate to next inferior pay grade.
   	No indication of appeal in the record.

Elements of Discharge:  [INVOLUNTARY]

Discharge Process:				
Date Notified:					20000203
Narrative Reason(s):				
Least Favorable Characterization:			
Record Supports Narrative Reason:			no
Date Applicant Responded to Notification:		20000203
Rights Elected at Notification:
Consult with Counsel			
Administrative Board			
Obtain Copies	  			
Submit Statement(s)			
GCMCA Review				
Board Date:					NOT APPLICABLE
Finding of Administrative Board:			NOT APPLICABLE  
Recommendation of Commanding Officer (date):	20000203
Discharge directed by (date):			COMMANDING OFFICER 20000203     
Narrative reason directed:				
Characterization of directed:			 
Date Applicant Discharged:			20000203 

Additional Information Considered by Board

Type of documentation submitted by the Applicant and considered by the Board
       
       	Document Type					#Pages
       Related to Period of Service:
	Service/Medical Record:				2
	Other Period of Service:				     
       Related to Post-Service Period:
	Community Service:				     
	Education:					     
	Employment:					     
	Health/Medical:					     
	Character Statements:				     
	Criminal Records Checks:				     
	Additional Statements from Applicant:		4
        Other Documentation	 (Describe Below)		     

        Total Number of Pages:				6

       Description of Other Documentation:
            

For Personal Appearance Hearings only:
Applicant Testified:  
Applicant Available for Questions:  
Witnesses:        
Observers:        

Discussion of Discharge Review

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, Service Record Entries, Medical Record Entries, Elements of Discharge and evidence submitted by the Applicant, the Board found the Applicant’s discharge improper and inequitable.

The Applicant requested a change in his narrative reason for discharge. The Board granted this request for relief.  The Applicant was discharged for Misconduct due to Commission of a Serious Offense.  Members may be separated based on commission of a serious military or civilian offense when the specific circumstances of the offense warrant separation and the offense would warrant a punitive discharge per MCM, Appendix 12 for the same or closely related offense.  In the instant case, the only misconduct in the Applicants record was a short term unauthorized absence (a violation of UCMJ Article 86).  A short term unauthorized is not considered a serious offense because a punitive discharge is not warranted in Appendix 12 of the MCM.  The Applicant was improperly discharged for commission of a serious offense.  In cases where no other reason for separation set forth in the Naval Military Personnel Manual is appropriate, but where separation of a member is considered to be in the best interest of the service, the Secretary of the Navy has the authority to direct the separation of any member prior to the expiration of their term of service.  The Applicant’s Commanding Officer determined the Applicant had no potential for further Naval service.  The basis for his determination is clearly documented in the service record.  There is no other narrative reason for separation which accurately describes the reason the Applicant was separated.  Therefore, the NDRB determined that the reason for the Applicant’s discharge shall change to Secretarial Authority. Relief granted.

Since the Applicant’s separation by reason of Misconduct due to commission of a serious offense was determined “improper”, the characterization of service should be “type warranted by the service record.”  When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  A general discharge 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 a nonjudicial punishment proceeding for violating UCMJ Article  86 (unauthorized absence).  The Applicant’s conduct, which forms the primary basis for determining the character of his service, 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 of his characterization of service to Honorable.  Relief is not warranted. 

Applicant’s Issues:
1.  Equity – Discharge inequitable because based on one  isolated incident
2.  Propriety – Discharged without separation physical

Acceptance of Applicant’s Issues:
The Board accepted Issue(s) 1 for consideration.  

Issue 1 Equity:

The Applicant states that his discharge was inequitable because it was based on one isolated incident.  The Board agrees with the Applicant in this case because his misconduct was not sufficiently serious standing alone to serve as a basis for separation.  The Board has already granted relief in Paragraph 2 for this inequity.
  
Regarding the Applicant’s Issue 2, the Board determined that  which can form the basis of relief for the Applicant and that the Board did not have the authority to grant the relief for which the Applicant petitioned.  

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 
12 Dec 97 until 29 March 2000, Article 1910-142  [formerly 3630605]. SEPARATION 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 86 (unauthorized absence).

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.  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