ex-FA, USN
ND06-01092

Current Discharge and Applicant’s Request:

Application Received:  				20060815
Reason for Separation:				MISCONDUCT - 
Character of Service:				
Discharge Authority:				MILPERSMAN 3630600
Last Duty Assignment/Command at Discharge:	USS TORTUGA (LSD46) LITTLE CREEK, VA

Applicant’s Request:
	Narrative Reason change to:		nONE REQUESTED
	Characterization change to:		
	Review Requested:			
	Representation:  				
	Issues (as summarized by NDRB):		1. Desire to enlist in Marine Corps.
						2.  Discharge improper because Applicant misled regarding rights.
						3.  Discharge inequitable in light of “Whole Man” concept.
						4.  Discharge inequitable in light of overall service record.
						5.  Discharge inequitable in light of minor offenses.
						6.  Discharge inequitable due to personality conflict, youth, immaturity.
						7.  Discharge inequitable due to punitive effect.	

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   - PATTERN OF MISCONDUCT.

Summary of Service:

Prior Service:
Inactive:						NONE 
Active:   		               		NONE 

Period of Service Under Review:
Date of Enlistment:  				19940429
Years Contracted:  				, (36-month active-duty requirement); NO EXTENSION 
Date of Discharge:				19960425
Length of Service:				
	Active:					01  Yrs  07  Mos  06  Days
	Inactive:					00  YRS  04  MOS  20  days
Time Lost During This Period:			NONE

Education Level:  				
Age at this Enlistment:  				
AFQT:  						35
Highest Rate/Rank:				FA
Performance Evaluation Averages (number of marks):	NOT FOUND IN RECORD

Awards and Decorations (per DD Form 214): 	NONE*

*Service record indicates National Defense Service Medal

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

19940919:	Applicant commenced active duty.

19950714:	NJP for violation (s) of UCMJ:
	Article 86:  Unauthorized absence.
	Article 91:  Contempt or disrespect toward a warrant, commissioned, or petty officer.
	Sentence: Forfeiture of $100.00 for 1 month, restriction for 15 days and extra duty for 30 days.
	No indication of appeal in the record.

19950714:	Retention Warning:  Advised of deficiency (Unauthorized Absence, and contempt or disrespect toward a Warrant, Commissioned, or Petty Officer which resulted in violation of UCMJ Articles 86, 91), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

19950803:	NJP for violations of UCMJ:
	Article 86:  Unauthorized absence.
	Award:  Restriction for 10 days and extra duty for 15 days.
	No indication of appeal in the record.

19950803:	Retention Warning:  Advised of deficiency (Unauthorized absence failure to report at the time prescribed which resulted in violation of UCMJ Article 86), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

19960122:	Unauthorized absence at 0730 this date. Intentions unknown.
	Member returned from unauthorized absence at about 1800 this date.  UA for about 10 ½ hours.

19960201:	NJP for violation(s) of UCMJ:  Article 86:  Unauthorized absence.
	Award:  Forfeiture of $475.98 for 1 month, restriction and extra duty for 45 days.
	No indication of appeal in the record.

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

Record not available.

Elements of Discharge:  [INVOLUNTARY]

Discharge Process:				ADMINISTRATIVE BOARD PROCEDURE
Date Notified:					19960207
Reason for Discharge				MISCONDUCT
Least Favorable Characterization:			

Date Applicant Responded to Notification:		19960207
Rights Elected at Notification:
Consult with Counsel			WAIVED
Administrative Board			
Obtain Copies	  			
Submit Statement(s) (date)			

Administrative Discharge Board date:		NOT APPLICABLE
Commanding Officer recommendation (date):	  (19960208)
Discharge directed by (date):			BUPERS (19960227)
Reason directed:					MISCONDUCT - 
Characterization directed:				
Date Applicant Discharged:			19960425

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:		4
        Other Documentation	 (Describe Below)		6

        Total Number of Pages:				12

       Description of Other Documentation: (2 copies)
       	Representative brief in support of petition; Statement from YN2 S_ E. L_, USN

Discussion

Issue 1:   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 ().  The Board determined that the Applicant’s allegation and supporting evidence of being misled into waiving his right to an administrative discharge board was not sufficient to overcome the clear evidence in the record that he was properly and accurately notified of all of his rights in the separation process.  The subject of the notice to him refers to an “administrative board procedure;” clearly states his right to an administrative discharge board; clearly states his right to consult with counsel; and clearly states his right to 2 full days in which to consider which, if any, rights to exercise.  The record also reflects that the Applicant explicitly acknowledged understanding the contents of the notice letter, and explicitly chose to waive all of his rights.  The Board determined that, even assuming that the Applicant verbally received inaccurate information, he was clearly on notice of his actual rights and chose not to exercise them.  There is no evidence in the record that Applicant’s waiver of rights was the result of administrative error, improper processing, fraud or duress.  Relief is not warranted on this issue.

Issue 3 ().  The Board determined that it could not respond to this issue because its meaning was unclear.

Issue 4 ().  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 2 retention warnings and 3 nonjudicial punishment proceedings for violations of Articles 86 and 91 of the UCMJ.  The Applicant’s conduct 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 is not warranted on this issue.
.
Issue 5 ().  The Board advises the Applicant that at least one of his offenses, violation of Article 91, is considered a serious offense for which a punitive discharge is authorized upon conviction at special or general court-martial.  Further, his repeated misconduct demonstrates a pattern of misconduct as defined by regulations governing administrative separation.  Per those regulations, characterization of service when the reason for discharge is pattern of misconduct is normally under other than honorable conditions.  Relief is not warranted on this issue.

Issue 6 ().  The Board reiterates its determination in regards to issues 4 and 5.  It found no evidence that the Applicant’s misconduct was not based on fact, that his punishment was improperly imposed or that his performance was mischaracterized.  Relief is not warranted on this issue.

Issue 7 ().  Administrative separations are not criminal proceedings or judicial actions.  By definition, the reason for discharge and characterization of service are not punitive.  They are statements of fact regarding the reason why a servicemember was separated from the service and the official assessment of the quality of that service.  The Board found no impropriety or inequity in either the Applicant’s reason for discharge or characterization of service.  Relief is not warranted on this issue.

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.  The Board did note that the notice to the Applicant of administrative separation proceedings should have indicated that the reason for processing was “Misconduct – Pattern of Misconduct” rather than “Misconduct.”  The Board determined that this administrative error did not prejudice the Applicant and was therefore not improper.  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

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 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, Article 91, Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer.

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