ex-AA, USN
ND06-01035

Current Discharge and Applicant’s Request:

Application Received:  				20060802     
Narrative Reason for Separation:			
Character of Service:				
Discharge Authority:				MILPERSMAN 1910-146
Last Duty Assignment/Command at Discharge:	USS CARL VINSON (CVN 70)

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

Decision:

Date of Decision:					20070628	
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  PATTERN OF MISCONDUCT.

Summary of Service:

Prior Service:
Inactive: USNR (DEP)				20001030-20010724 COG
Active:        		               		NONE
Period of Service Under Review:
Date of Enlistment:  				20010725     
Years Contracted:  				      
Date of Discharge:				20040412
Length of Service:				02  Yrs  08  Mos  18  Days
Time Lost During This Period:			10
Days Unauthorized Absence:			10     
Days Confinement:				NONE   

Education Level:  				
Age at this Enlistment:  				
AFQT:  						34
Highest Rate/Rank:				AN

Performance Evaluation Averages (number of marks):
Performance:					2.5 (2)
Behavior:					2.5 (2)
OTA:						2.33

Awards and Decorations (as listed on the DD Form 214):
Navy Unit Commendation; Navy “E” Ribbon; National Defense Service Medal; Sea Service Deployment Ribbon
     

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

20020322:	Applicant to unauthorized absence on 20020322.

20020325:	Applicant from unauthorized absence on 20020325.

20020327:	Applicant to unauthorized absence on 20020327.

20020329:	Applicant from unauthorized absence on 20020329.

20020401:	Applicant to unauthorized absence at 0600 on 20020401.

20020403:	Applicant from unauthorized absence at 1325 on 20020403 (2 days/surrendered).

20020503:	Applicant to unauthorized absence at 2140 on 20020503.

20020504:	Applicant from unauthorized absence at 0730 on 20020504.

20020514:	NJP for violations of UCMJ:
	Article 86: (2 specifications), Unauthorized absence.
	Award:  14 days restriction (suspended for 6 months), extra duty for 7 days.
	No indication of appeal in the record.

20020521:	Retention Warning:  Advised of deficiency (Commanding Officer’s NJP on 20020514 for VUCMJ Article 86 (2 specifications), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

20020523:	Assault upon PC3 J_ S_, in the execution of military law enforcement duties, by pushing him in the chest.

20020625:	NJP for violations of UCMJ:
	Article 92: (3 specifications), Sexual harassment between March 2002 and June 2002.  On numerous occasions made numerous, deliberate and unwelcome advances and verbal comments of a sexual nature to AA E_ A. H_, AA S_ C. M_, and GM S_ L. G_.
	Article 128: Assault, 20020523 pushing PC3 J_ S_ who then was and was known by the accused to be in the  execution of military law enforcement duties.
	Award:  Forfeiture of $577 for 2 months, restriction for 45 days, reduction to E-1 (suspended for 6 months).
	No indication of appeal in the record.

20031229:	Larceny of two compact discs from NEX

20040116:	Applicant unauthorized absence from place of duty on 20040116

20040217:	NJP for violations of UCMJ:
	Article 86: Unauthorized absence, place of duty on 20040116.
	Article 121: Larceny of military property, two CD’s from NEX. 
	Award:  Forfeiture of $706 for 2 months, reduction to E-2.
	No indication of appeal in the record.

20040308:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of Misconduct due to a pattern of misconduct and Misconduct due to the commission of a serious offense.

20040308:	Advised of rights and having elected not to consult with counsel, the Applicant elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

20040331:	Commanding Officer, USS Carl Vinson (CVN-70), recommended to Commander Carrier Group Three the Applicants discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to the commission of a serious offense.  Commanding Officer’s comments:  “AA M_ (the Applicant) has been to Captain’s Mast three times during his time on the CARL VINSON of offenses including unauthorized absence, failure to obey lawful orders, larceny and assault.  AA M_’s chain of command has expended an extraordinary amount of time instructing, counseling and mentoring him, yet AA M_ has demonstrated repeatedly that he has no desire to improve his behavior or contribute to the mission of CARL VINSON or the Navy.  I believe that he has no potential for further naval service.  Consequently, I recommend separating AA M_ for misconduct due to a pattern of misconduct and characterizing his service as Other Than Honorable.”

20040405:	GCMCA, Commander Carrier Group Three, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

Elements of Discharge:  [INVOLUNTARY]

Discharge Process:				
Date Notified:					20040308
Reason for Discharge				MISCONDUCT - 
						MISCONDUCT - 
Least Favorable Characterization:			
Date Applicant Responded to Notification:		20040308
Rights Elected at Notification:
Consult with Counsel			
Administrative Board			
Obtain Copies	  			
Submit Statement(s) (date)			       
						
Recommendation of Commanding Officer (date):	 20040331       
Discharge directed by (date):			COMCARGRU THREE 20040405     
Narrative reason directed:				
Characterization directed:				 
Date Applicant Discharged:			20040412 

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 Under Review:
	Service/Medical Record:				9
	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:		1
        Other Documentation	 (Describe Below)		2

        Total Number of Pages:				12

       Description of Other Documentation:
       DD Form 149 (back), Email dated 20030122

Applicant’s Issues as Summarized by the Board:
The Applicant submitted the following issues:
1.  G. I. Bill - To attend college.
2.  Equity - Punishment to harsh.
3.  Equity - Forced to endure racism, criticism, father died, emotional trauma and fear of going to war. 
4.  Post Service – Has not been in trouble since leaving the Navy.

Issue 1:    is and issue which the Board cannot form the basis of relief for the Applicant, the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum regarding .  

Decisional Issues:

Issues 2, 3 and 4 (): 

For the information of the Applicant, an administrative discharge is not punishment.  The characterization of service is a description or classification of the total service provided during the members enlistment.  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.  An under other than honorable conditions 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 retention warning, three nonjudicial punishment proceedings for violations of Articles 86 (unauthorized absence), 92 (sexual harassment), 121(larceny) and 128 (assault) of the UCMJ.  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. 

The Applicant contends that his discharge was inequitable because his punishment was too harsh based on youthful indiscretions.  The Board reviews the propriety and equity of each Applicant’s discharge individually.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service.  Based upon the record, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy.  The evidence supported the pattern of misconduct for which the Applicant was administratively discharged. That separation was appropriate, and a under other than honorable conditions discharge was warranted. 

In the Applicant’s letter to the Board he states that his misconduct was the result of being criticized and being forced to endure racism.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his claim.  There is no evidence in the record, nor has the Applicant produced any evidence, to support his contention of racism and undue criticism.  However, even if the Applicant could document his claims this would neither amount to a justification nor to a defense for the Applicant’s own misconduct.  The record clearly reflects his willful and continued misconduct which demonstrated he was unfit for further service.  

The Applicant contends that his problems in the Navy can be attributed to the death of his father and fear of going to war.  
The NDRB recognizes that serving in the U.S. Navy is challenging.  Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country.  It must be noted that most members of the Navy serve honorably and therefore earn their honorable discharges.  In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due.  The NDRB found that the Applicant's service was equitably characterized.  

The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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 the civilian life subsequent to leaving the service.  Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered.  The Applicant provided no documentation of post-service accomplishments.  The Applicant's efforts need to be more encompassing than those provided.  For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, evidence of drug free existence, and certification of non-involvement with civil authorities.  The Board determined that the documentation provided by the Applicant did not mitigate 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, 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), re-issued October 2002, effective 22 Aug 2002 until 25 April 2005, 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.

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