ex-ABF3, USN
ND06-00991

Current Discharge and Applicant’s Request:

Application Received:  				20060718     
Narrative Reason for Separation:			MISCONDUCT
Character of Service:				
Discharge Authority:				MILPERSMAN 1910-142
Last Duty Assignment/Command at Discharge:	USS KEARSARGE (LHD-3) 

Applicant’s Request:
	Narrative Reason change to: 		NONE REQUESTED
	Characterization change to:		
	Review Requested:			
Representation:  					NONE DESIGNATED

Decision:

Date of Decision:					20070607
Location of Board:				Washington D.C.
Complete Service Record:				
Complete Medical Record:			
Complete Discharge Package:			

Regarding propriety, the Board found the discharge:	
Regarding equity, the Board found the discharge:	

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

.

Summary of Service:

Prior Service:
Inactive: USNR (DEP)				19810612 – 19811014	COG
Active:        		               		19811015 – 19850729	HON
						19850730 – 19871104	HON
						19871105 – 19910808	HON
						19910809 – 19990201	HON
Period of Service Under Review:
Date of Enlistment:  				19990202
Years Contracted:  				;  * 
Date of Discharge:				19990827
Length of Service:				00  Yrs  06  Mos  26  Days (does not exclude lost time, if any)
Time Lost During This Period:			56 (Extracted from dd form 214)        
			
Education Level:  				
Age at this Enlistment:  				
AFQT:  						36
Highest Rate/Rank:				ABF1

Performance Evaluation Averages (number of marks):
Performance/Behavior/OTA:			NOT FOUND IN RECORD 

Awards and Decorations (as listed on the DD Form 214):
SEA SERVICE DEPLOYMENT RIBBON (2), NATIONAL DEFENSE SERVICE MEDAL, SOUTHWEST ASIA SERVICE MEDAL, NAVY UNIT COMMENDATION (2), KUWAIT LIBERATION MEDAL, NAVY "E" RIBBON (4), ARMED FORCES SERVICE MEDAL, NATO MEDAL, MERITORIOUS UNIT COMMENDATION, HUMANITARIAN SERVICE MEDAL, FOURTH GOOD CONDUCT MEDAL 

*Extracted from CO, USS KEARSAGE msg 191800Z Aug 99

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

19990322:	Applicant to unauthorized absence at 0700.

19990328:	Applicant from unauthorized absence at 2200 (6 days/surrendered).

19990406:	NJP for violation(s) of UCMJ, Article 86:  Unauthorized absence from unit.
	Award:  Forfeiture of $1000 for 1 month ($700 suspended for 6 months), restriction for 60 days (30 days suspended for 6 months), reduction to E-5 (suspended for 6 months).  No indication of appeal in the record.

19990503:	Applicant to unauthorized absence.
	[Extracted from CO, USS KEARSAGE msg 191800Z Aug 99 and DD 214]

Not dated:	Applicant in hands of civilian authorities for 2 days.
	[Extracted from CO, USS KEARSAGE msg 191800Z Aug 99]

19990528:	Involvement with Civil Authorities: ABF3 S_ (Applicant) was charged with five counts in White County, Georgia.  Counts 1 and 2 - Terrorism Threats, Count 3-Harassing phone calls, Count 4 - Driving under the influence (DUI) and count 5 - Failure to maintain lane.  Pursuant to a Plea Agreement, the member pleaded guilty to assault (lesser charge of Count 1) and the DUI (Count 4).  The remaining counts were dismissed.  He was sentenced to confinement for 12 months for each charge to run consecutive, however, Count 4 was credited for (48 hours) time served and the remaining 23 months, 28 days may be served on probation with special conditions as follows:  Shall not possess any alcohol nor occupy any residence or vehicle where such is present.  (2) Avoid any contact with (victim) Mrs. S_ S_ except thru brother, J_ S_ as related to child matters.  (3) Complete 40 hours of community service not less than eight hours per week.  Pay fine of $1000.00 totaling $1,043.00 with court fee (within 12 months).  Member does not intend to file an appeal.
	[Extracted from CO, USS KEARSAGE msg 191800Z Aug 99]

19990628:	Applicant from unauthorized absence.
	[Extracted from CO, USS KEARSAGE msg 191800Z Aug 99 and DD 214]

19990813:	Nonjudicial punishment suspended on 990406 vacated.

19990813:	NJP for violation(s) of UCMJ:  Article 86 (2 Specifications):  Unauthorized absence from unit.
	Award:  Forfeiture of ½ pay per month for 1 month (suspended for 30 days), reduction to E-4, restriction for 30 days (suspended for 30 days).  No indication of appeal in the record.

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

None.

Elements of Discharge:  [INVOLUNTARY]

Discharge Process:				ADMINISTRATIVE BOARD PROCEDURE*
Date Notified:					19990813
Reason(s):					MISCONDUCT - 
						MISCONDUCT - 
Least Favorable Characterization:			
Record Supports Narrative Reason:			

Date Applicant Responded to Notification:		19990813
Rights Elected at Notification:
Consult with Counsel			
Administrative Board			
Obtain Copies	  			
Submit Statement(s)			

Board Date:					NOT APPLICABLE
Recommendation of Commanding Officer (date):	UNDER OTHER THAN HONORABLE CONDITIONS  (19990819)
Separation Authority (date):			COMMANDER, AMPHIBIOUS GROUP TWO (19990820)
Narrative reason directed:				MISCONDUCT
Characterization of directed:			 
Date Applicant Discharged:			19990827 

*Extracted from CO, USS KEARSAGE msg 191800Z Aug 99

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

        Total Number of Pages:				1

       Description of Other Documentation:  None.
            

Applicant’s Issues as Summarized by the Board:
1.  Improve employment prospects.
2.  Discharge not warranted by overall service.
3.  Post-service conduct.

Issue 1:  The Board determined that  which can form the basis of relief for the Applicant or that the Board did not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum regarding .  

Decisional Issues:

Issue 2 ().  Certain serious offenses warrant separation from the Naval service in order to maintain proper order and discipline.  An under other than honorable conditions discharge is warranted when a member’s conduct involves one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service.  While the Applicant served honorably for about 17 years, the period of service under review commenced on 990202.  In the 6 months of service under review, the Applicant’s service was marred by 2 nonjudicial punishments for violation of the UCMJ, Article 86, and a civilian conviction for driving under the influence and assault (also violations of the UCMJ, Articles 111 and 128.)  The Applicant’s violations are considered serious offenses for which a punitive discharge is authorized if adjudged at a special or general court-martial.  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.  Relief denied.   

Issue 3 ().  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 should 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.  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.  Relief denied.

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.

Minority Opinion

None.

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, Articles 86, Absence without leave (for more than 30 days); 111, Drunken or reckless operation of vehicle, aircraft, or vessel; and 128, Assault.

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