ex-AR, USN
ND06-01055

Current Discharge and Applicant’s Request:

Application Received:  				20060814
Narrative Reason for Separation:			MISCONDUCT
Character of Service:				
Discharge Authority:				MILPERSMAN 1910-142
Last Duty Assignment/Command at Discharge:	NAVAL MEDICAL CENTER SAN DIEGO CA

Applicant’s Request:
	Narrative Reason change to:		NONE REQUESTED     
	Characterization change to:		
Review Requested:		  (originally submitted as personal appearance Applicant later requested documentary review)
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)				20010719 - 20020714 
Active:   					NONE
Period of Service Under Review:
Date of Enlistment:  				20020715
Years Contracted:  				      
Date of Discharge:				20041117
Length of Service:				02  Yrs  04  Mos  03  Days
Time Lost During This Period:			130
Days Unauthorized Absence:			NONE
Days Confinement:				130

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

Performance Evaluation Averages (number of marks):
Performance:					N/A
Behavior:					N/A
OTA:						N/A

Awards and Decorations (as listed on the DD Form 214):
NATIONAL DEFENSE SERVICE MEDAL

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

20040927:	Special Court-Martial.
	Charge I: Violation of the UCMJ, Article 92.
	Specification:  Violation of a lawful general regulation by wrongfully possessing a loaded handgun aboard Naval Station San Diego, California.  Plea:  Guilty.  Findings:  Guilty.
	Charge II: Violation of the UCMJ, Article 111:
	Specification:  Physically control a vehicle while drunk.  Plea:  Not Guilty.  Findings:  Withdrawn.
	Charge III Violation of the UCMJ, Article 112a (2 specifications.
	Specification 1:  Wrongful possession of marijuana.  Plea:  Not Guilty.  Findings:  Withdrawn.
	Specification 2:  Wrongful use of marijuana.  Plea:  Guilty.  Findings:  Guilty.
	Charge IV: Violation of the UCMJ, Article 134:
	Specification:  Unlawfully carrying a concealed weapon.  Plea:  Guilty.  Findings:  Guilty
	Sentence: Confinement for 6 months, reduction to E-1.
	CA action not found in service record.

20041109:	Commander, Naval Medical Center, San Diego, notified the Applicant of his intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct by reason of the commission of a serious offense.

20041109:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

20041118:	Commander, Naval Medical Center, San Diego, advised Commander, Naval Personnel of the Applicant’s separation from the naval service by reason of misconduct due to the commission of a serious offense with a service characterization of under other than honorable conditions.

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:				2
	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:		7
        Other Documentation	 (Describe Below)		0

        Total Number of Pages:				9

Applicant’s Issues as Summarized by the Board:

The Applicant submitted the following issue.
1.  Request Medical Pension

Issue 1:   an issue which the Board cannot form the basis of relief for the Applicant, he 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:

It appears as though the Applicant was administratively discharged for the same offenses which he was tried at Special Court-Martial.  If this is in fact the case, according to MILPERSMAN 1910-704 para 1.b.5, the discharge package should have been sent to the Chief of Naval Personnel before discharging with an under other than honorable conditions characterization of service.  However, the Applicant was properly notified of his impending administrative separation to which he waived his rights to an administrative board, elected not to seek the advice of counsel and did not object to his separation under other than honorable conditions.  The error of procedure was not prejudicial to the Applicant; therefore the Board determined that the discharge was 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), re-issued October 2002, effective 22 August 2002 until 
25 April 2005, Article 1910-142, 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.

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