ex-SWCR, USN
ND06-01079

Current Discharge and Applicant’s Request:

Application Received:  				20060815     
Narrative Reason for Separation:			
Character of Service:				
Discharge Authority:				MILPERSMAN 3630600
Last Duty Assignment/Command at Discharge:	NAVAL MOBILE CONSTRUCTION BATTALION 133

Applicant’s Request:
	Narrative Reason change to:		NOT APPLICABLE
	Characterization change to:		
	Review Requested:			
Representation:  					
Issues (as summarized by NDRB):			1.  Education	
						2.  Immaturity
						3.  Post service – college/completion of Cognitive Intervention Program

Decision:

Date of Decision:					20070719
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 Reason for Discharge shall   - .

Summary of Service:

Prior Service:
Inactive: USNR (DEP)				19910610-19911020 
Active:        		               		NONE
Period of Service Under Review:
Date of Enlistment:  				19911021     
Years Contracted:  				;        
Date of Discharge:				19941207
Length of Service:				03  Yrs 01  Mos  17  Days
Time Lost During This Period:			
Days Unauthorized Absence:			NONE
Days Confinement:				NONE

Education Level:  				
Age at this Enlistment:  				21
AFQT:  						53
Highest Rate/Rank:				SWCN

Performance Evaluation Averages (number of marks):
Performance:					3.4 (3)
Behavior:					3.4 (4)
OTA:						3.53

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

19920214:	NJP for violation of UCMJ:
	Article 92: On or about 19920201 failed to obey a lawful order by wrongfully having a bottle of liquor in his possession outside the BEQ.
	Award:  Restriction and extra duty for 45 days.
	No indication of appeal in the record.

19920214:	Retention Warning:  Advised of deficiency (misconduct of a disciplinary nature specifically, failure to obey other lawful written order), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

19930409:	NJP for violation of UCMJ:
	Article 86: Absence without leave on 19920916 and 19920917.
	Award:  Restriction and extra duty for 30 days.
	No indication of appeal in the record.

19930422:	Retention Warning:  Advised of deficiency (Violation of UCMJ, Article 86-Unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

19930722:	NJP for violation of UCMJ:
	Article 92: Failure to obey an order or regulation.
	Award:  Restriction and extra duty for 15 days, reduction to next inferior pay grade.
	No indication of appeal in the record.

19930903:	Applicant completed of Level III alcohol rehabilitation.

19941006:	NJP for violation of UCMJ:
	Article 111: Operating a government vehicle while drunk and in a reckless manner on 19940916 on board NAVSTA SAN DIEGO, CA.
	Award:  Forfeiture of $466.65 for 2 months, restriction and extra duty for 45 days, reduction in rate suspended for 6 months.
	No indication of appeal in the record.

19941007:	Retention Warning:  Advised of deficiency (misconduct of a disciplinary nature specifically, violation of UCMJ Article 111: Operating a government vehicle while drunk and in a reckless manner by driving at a speed in excess of 40 miles per hour through a 10 mile per hour speed zone on board Naval Station San Diego on or about 0011, 19960916), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

19941020:	Vacation of suspended punishment awarded at NJP held 9941006 due to continued misconduct.

19941109:	DAAR: Alcohol abuse, found dependent, recommended for separation not via VA hospital.

19941110:	NJP for violation of UCMJ:
	Article 86: Failed to go to appointed place of duty on 0530, 19941020, to wit: Battalion Physical Training.
	Award:  Forfeiture of $416.40 for 2 months, restriction and extra duty for 45 days, reduction to next inferior pay grade.  All punishments suspended for 6 months.
	No indication of appeal in the record.

19941114:	Vacation of suspended punishment awarded at NJP on 19941110 due to continued misconduct.

19941116:	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, misconduct due to a pattern of misconduct and alcohol rehabilitation failure.

19941116:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

19941125:	Commanding Officer, Naval Construction Battalion One Three Three recommended to the Bureau of  Naval Personnel the Applicant’s discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense, misconduct due to a pattern of misconduct and alcohol rehabilitation failure.

19941205:	Bureau of Naval Personnel 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:					19941116
Reason for Discharge				

Least Favorable Characterization:			UNDER OTHER THAN HONORABLE CONDITIONS
Date Applicant Responded to Notification:		19941116
Rights Elected at Notification:
Consult with Counsel			
Administrative Board			
Obtain Copies	  			
Submit Statement(s) (date)			       
GCMCA Review				

Recommendation of Commanding Officer (date):	, 19941125
Discharge directed by (date):			BUPERS 19941205
Narrative reason directed:				
Characterization directed:				
Date Applicant Discharged:			19941207

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:					1     
	Employment:					0     
	Health/Medical:					0     
	Character Statements:				0     
	Criminal Records Checks:				0     
	Additional Statements from Applicant:		1     
        Other Documentation	 (Describe Below)		1     

        Total Number of Pages:				4     

       Description of Other Documentation:
       	Certificate of Achievement Cognitive Intervention Program     

Discussion

Issue 1 (Education):   either  which the Board cannot form the basis of relief for the Applicant, or  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 (Immaturity):   The Applicant contends that his discharge was inequitable because his punishment was too harsh based 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 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 five nonjudicial punishment proceedings for violations of UCMJ Articles 92 (failure to obey, x2), Article 111 (drunken driving) and 86 (unauthorized absence, x2).  These nonjudicial punishments form the basis for the Applicants administrative discharge based on a pattern of misconduct which is defined as two or more nonjudicial punishments during the same enlistment.  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. 

Issue 3 (Post service – college/completion of Cognitive Intervention Program):  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.  Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  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 one page documenting his enrollment at Coastal Bend College and a certificate from Windham School District as documentation of his post-service accomplishments.  The Applicant's efforts need to be more encompassing than those provided.  For example, the Applicant could have produced 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.  

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 - PATTERN OF MISCONDUCT.

B.  Secretary of the Navy Instruction 5420.174D of 22 December Para 2112004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II,, 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