ex-DN, USN
ND06-00985

Current Discharge and Applicant’s Request:

Application Received:  				20070719
Narrative Reason for Separation:			
						
Character of Service:				
Discharge Authority:				milpersman 1910-138
Last Duty Assignment/Command at Discharge:	navdencen parris island sc

Applicant’s Request:
	Narrative Reason change to: 		FULFILLED OBLIGATION TIME SERVED
	Characterization change to:		
	Review Requested:			
Representation:  					

Decision:

Date of Decision:					20070709
The Discharge shall remain:			

Regarding propriety, the Board found the discharge:	
Regarding equity, the Board found the discharge:	
 Vote (characterization/reason)			/ 
Location of Board:				Washington D.C.
Complete Service Record:				
Complete Medical Record:			
Discharge Package Complete:			

Applicant’s Issues as Summarized by the Board:

1.  Propriety – Basis for separation not supported by evidence
2.  Priopriety – Requested court martial and was discharged instead

Summary of Service:

Prior Service:
Inactive: USNR (DEP)				19950817 - 19960206	ELS
	USNR (DEP)				19970328 - 19970714	COG
Active:   None		               		     
Period of Service Under Review:
Date of Enlistment:  				19970715
Years Contracted:  				;  37 month Extension     
Date of Discharge:				20020802
Length of Service:				05  Yrs  00  Mos  18  Days
Time Lost During This Period:			      
						        
			
Education Level:  				
Age at this Enlistment:  				
AFQT:  						32/51
Highest Rate/Rank:				DN

Performance Evaluation Averages (number of marks):
Performance/Behavior/OTA:			3.0 (6)	2.83 (6)	2.94
	Extracted from:  Supporting Documents   Other:       

Awards and Decorations (as listed on the DD Form 214):
NAVY MERITORIOUS UNIT COMMENDATION MEDAL, NAVY "E" RIBBON, NATIONAL DEFENSE SERVICE MEDAL, NAVY DIST. MARKSMANSHIP BADGE RIBBON, FIRST GOOD CONDUCT AWARD PERIOD ENDING: 01JUL

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

19980701:	NJP for violation(s) of UCMJ:
	Article 86: Unauthorized absence.
	Article 92:  Dereliction of duty.
	Award:  Forfeiture of $100 for 1 month, restriction and extra duty for 15 days.  Forfeiture suspended for 6 months..
	No indication of appeal in the record.

19980702:	Retention Warning:  Advised of deficiency (Violation of UCMJ Article 86: Unauthorized absence, Article 92: Failure to obey.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

19980810:	Forfeiture of pay awarded at NJP on 19980701 vacated due to continued misconduct.

19980810:	NJP for violation(s) of UCMJ:
	Article 134:  Conduct in a manner prejudicial of good conduct and discipline.
	Award:  Forfeiture of $100 for 1 month, restriction and extra duty for 60 days, reduction to SR.
	No indication of appeal in the record.

19980810:	Applicant restored to E-2 in accordance with COMHIBGRU THREE letter of 980908.

20020123:	Retention Warning:  Advised of deficiency (On 20020116 you were called by the Child Development Center because your child was sick.  After attending to your child’s medical condition and taking her back to the Child Development Center at approximately 1304, you failed to return to work.  You remained absent from work until 0645 on 2002117.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

20020307:	Retention Warning:  Advised of deficiency (You reported to work/morning muster late on two occasions, which resulted in your appearance at Executive Officer’s Inquiry.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

20020515:	Report of Disposition of Offense(s):  Charge I: Article 117 (2 specs):  Provoking speeches or gestures.  Specification 1:  On or about 20020411, wrongfully use provoking speech.  Specification 2: On or about 20020420, wrongfully use provoking speech.  Charge II: Article 134 (2 specs): Disorderly conduct.  Specification 1: On or about 20020411, display dishonorable conduct of a nature to bring discredit upon the Armed Forces.  Specification 2: On or about 20020428, display dishonorable conduct of a nature to bring discredit upon the Armed Forces.  Referred to Captain’s Mast.

20020612:	Counseling:  Advised of deficiency (Violation of UCMJ Article 117 (2 specifications): Provoking speeches or gestures.  Violation of UCMJ Article 134 (2 specifications):  Disorder conduct), notified of corrective actions and assistance available, and advised being processed.

20020612:	Applicant’s statement.

Elements of Discharge:  [INVOLUNTARY]

Discharge Process:				
Date Notified:					20020612
Narrative Reason(s):				
						
Least Favorable Characterization:			
Record Supports Narrative Reason:			
Date Applicant Responded to Notification:		20020612
Rights Elected at Notification:
Consult with Counsel			
Administrative Board			
Obtain Copies	  			
Submit Statement(s)			
GCMCA Review				
Discharge directed by (date):			COMMANDING OFFICER 20020618
Narrative reason directed:				
Characterization of directed:			 
Date Applicant Discharged:			20020802

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:				1
	Other Period of Service:				2
       Related to Post-Service Period:
	Community Service:				0
	Education:					0
	Employment:					0
	Health/Medical:					0
	Character Statements:				7
	Criminal Records Checks:				0
	Additional Statements from Applicant:		0
        Other Documentation	 (Describe Below)		0

        Total Number of Pages:				10

       Description of Other Documentation:
            

Applicant’s Issues as Summarized by the Board:

1.  Propriety – Basis for separation not supported by evidence
2.  Priopriety – Requested court martial and was discharged instead

Navy regulations provide that separation processing may be initiated when a service member has violated a retention warning and there is a documented series of at least three minor disciplinary infractions during the current enlistment.  The Applicant’s service was marred by a retention warning and two nonjudicial punishment proceedings for violations of UCMJ Articles 86 (unauthorized absence), 92 (dereliction of duty), and 134 (conduct to the prejudice of good order and discipline).  The Applicant’s conduct was sufficient basis to process her administrative separation on the basis of minor disciplinary infractions.  Relief is not warranted.

The Applicant argues that her discharge was improper because she requested a court- martial and her command discharged her for minor disciplinary infractions without providing her with an opportunity to tell her “side of things.”  Pursuant to Article 15 of the UCMJ, nonjudicial punishment may not be imposed upon a member who has prior to imposition of punishment demanded trial by court-martial in lieu of nonjudicial punishment.  This provision protects the service member only from imposition of punishment at that forum.  The service member’s demand for courts martial does not deprive the command of other administrative or disciplinary options available under applicable regulations.  Whether to convene a court martial is a matter of discretion for the convening authority.   Relief is not warranted on the requested basis.

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 proper and equitable.

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 proper and equitable.

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 35, effective 25 Feb 2002 until 21 Aug 2002, Article 1910-138 (formerly 3630615), SEPARATION BY REASON OF MISCONDUCT - MINOR DISCIPLINARY INFRACTIONS.

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.

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