ex-DCFA, USN
ND06-01039

Current Discharge and Applicant’s Request:

Application Received:  				20060803
Narrative Reason for Separation:			MISCONDUCT
Character of Service:				
Discharge Authority:				MILPERSMAN 3630600
Last Duty Assignment/Command at Discharge:	USS DWIGHT D EISENHOWER CVN 69

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  .

Summary of Service:

Prior Service:
Inactive: USNR (DEP)				19901130 - 19901217 
Active:   					NONE
Period of Service Under Review:
Date of Enlistment:  				19901218
Years Contracted:  				
Date of Discharge:				19940918
Length of Service:				03  Yrs  09  Mos  11  Days
Time Lost During This Period:			

Education Level:  				
Age at this Enlistment:  				
AFQT:  						32
Highest Rate/Rank:				DC3

Performance Evaluation Averages (number of marks):
Performance:					3.8 (4)
Behavior:					3.8 (4)
OTA:						3.75

Awards and Decorations (as listed on the DD Form 214):
NATIONAL DEFENSE SERVICE MEDAL, SOUTHWEST ASIA SERVICE MEDAL, SEA SERVICE DEPLOYMENT RIBBON, MERITORIOUS UNIT COMMENDATION

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

19940428:	NJP for violations of UCMJ:
	Article 92:  Willful dereliction of duty on 19940205.
	Article 111:  Drunk driving on 19940206.
	Article 134:  Drunk and disorderly on 19940205.
	Award:  Forfeiture of $300 for 2 months, restriction and extra duty for 45 days, reduction to E-3.
	No indication of appeal in the record.

19940813:	NJP for violations of UCMJ:
	Article 134 (3 specifications):
	Specification 1:  Incapacitated for duty on or about 19940707 due to wrongful previous overindulgence in intoxicating liquor.
	Specification 2:  Drunk and disorderly on or about 19940707.
	Specification 3:  Disorderly conduct on or about 19940728.
	Award:  Forfeiture of $450 for 2 months, restriction and extra duty for 45 days, reduction to E-2.
	No indication of appeal in the record.

940815:	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 the commission of a serious offense.

940815:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

940826:	Commanding Officer, Dwight D. Eisenhower (CVN-69), recommended to Chief of Naval Personnel the Applicant’s discharge by reason of misconduct – commission of a serious offense and that his service be characterized as under other than honorable conditions.

940915:	Chief of Naval Personnel, directed the Applicant's discharge with his service characterized as under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

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

940707:		Applicant found unfit for duty with a blood alcohol count of .098.

Elements of Discharge:  [INVOLUNTARY]

Discharge Process:				
Date Notified:					19940815
Reason for Discharge				MISCONDUCT - 
Least Favorable Characterization:			
Date Applicant Responded to Notification:		19940815
Rights Elected at Notification:
Consult with Counsel			
Administrative Board			
Obtain Copies	  			
Submit Statement(s) (date)			       

Recommendation of Commanding Officer (date):	  19940826
Discharge directed by (date):			BUPERS 19940915
Narrative reason directed:				
Characterization directed:				 
Date Applicant Discharged:			19940918

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:				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

Applicant’s Issues as Summarized by the Board:
The Applicant submitted the following issues. 
1.  Re-enlistment.
2.  Immature

Issue 1:    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:

Issue 2 ().

The Applicant contends that his discharge was inequitable because his punishment was too harsh based upon immaturity.  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.  An under other than honorable conditions characterization of service 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 two nonjudicial punishment proceedings for violations of UCMJ Article 92 (willful dereliction of duty), Article 111 (drunken driving) and four specifications of violations of Article 134 (drunk and disorderly, incapacity for duty, disorderly conduct).  Each violation of Articles 92 and 111 are considered the commission of a serious offense, the misconduct for which the Applicant was discharged.  Each serious offense violation carries a maximum penalty of a bad conduct discharge and 1 year of imprisonment.  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. 

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 9, effective 22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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.

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