ex-ENFN, USN
ND06-01099

Current Discharge and Applicant’s Request:

Application Received:  				20060815     
Reason for Separation:				MISCONDUCT - 
Character of Service:				
Discharge Authority:				MILPERSMAN 1910-140
Last Duty Assignment/Command at Discharge:	USS CROMMELIN (FFG 37), AT PEARL HARBOR, HI

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

Issues (as summarized by NDRB):

1. Enhance employment and education opportunities 
2. Previously punished for same reason discharged
3. Discharge not warranted by overall service record	

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  SECRETARIAL AUTHORITY.

Summary of Service:

Prior Service: 	Inactive:	USNR			19950908 - 19950925
		Active:  	USNR			19950926 - 19990729 HON 
Period of Service Under Review:
Date of Enlistment:  				19990730*     
Years Contracted:  				 
Date of Discharge:				20000301     
Length of Service
	Active:					00  Yrs  07  Mths  02  Dys  (does not exclude lost time)
	Inactive:					00  Yrs  00  Mths  00  Dys
	Time Lost During This Period:		  Days UA:    Days Confinement:  

Education Level:  				
Age at this Enlistment:  				
AFQT:  						50
Highest Rate/Rank:				ENFN

Performance Evaluation Averages (number of marks): NOT FOUND IN RECORD

Awards and Decorations (as listed on the DD Form 214):  ARMED FORCES EXPEDITIONARY MEDAL (2), MERITORIOUS UNIT COMMENDATION, NAVY UNIT COMMENDATION, NATIONAL DEFENSE DESERT STORM SERVICE MEDAL (DESERT SHIELD), SEA SERVICE DEPLOYMENT RIBBON (2)

*Extracted from Commanding Officer, USS CROMMELIN ltr dtd 20000216

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

20000216:	NJP for violation(s) of UCMJ:
	Article 92: Failure to obey lawful order. 
	Award:  Forfeiture of $613.00 for 2 months, restriction and extra duty for 45 days (suspended for 6 months), reduction to E-3.
	No indication of appeal in the record.

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

None. 

Elements of Discharge:  [INVOLUNTARY]

Discharge Process:				ADMINISTRATIVE BOARD PROCEDURE
Date Notified:					20000216
Reason for Discharge				
Least Favorable Characterization:			

Date Applicant Responded to Notification:		20000216
Rights Elected at Notification:
Consult with Counsel			
Administrative Board			
Obtain Copies	  			
Submit Statement(s) (date)			       
GCMCA Review				

Recommendation of Commanding Officer (date):	NOT APPLICABLE (LOCAL SEPARATION)*    
Discharge directed by (date):	COMMANDING OFFICER, USS CROMMELIN (FFG 37) (20000216) 
Narrative reason directed:				MISCONDUCT - 
Characterization directed:	
Date Applicant Discharged:			20000301

*NDRB note:  COMNAVPERSCOM msg dtg 311828Z MAR 00, advised command that per MPM 1910 – 708, when administrative board procedures are used and the board is waived, the command shall forward the case to GCMCA or higher for separation authority.

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     

       Description of Other Documentation:
       	     

Issues (as summarized by NDRB):

1. Enhance employment and education opportunities 
2. Previously punished for same reason discharged
3. Characterization not warranted by overall service record	

Discussion

Issue(s) 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 ().  Punishment for violations of the UCMJ can be imposed pursuant to provisions of the Manual for Courts-Martial.  Such misconduct, under circumstances as described per regulation, may also be a reason for subsequent administrative discharge.  Administrative discharge proceedings for identified misconduct do not constitute additional punishment.  Whether or not a servicemember warrants administrative discharge as a result of misconduct is a separate process and determination from whether or not that servicemember’s behavior constitutes misconduct.  Relief is not warranted on this issue.

Issue 3 ().  For reasons set forth below regarding the Board’s finding that the Applicant’s discharge was improper, the Board determined that the characterization of the Applicant’s service was inconsistent with standards of discipline in the naval service.  Relief granted on this issue.

Although not raised as an issue by the Applicant, the Board found that the Applicant’s discharge was improper.  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 noted that the Applicant appeared to have been discharged some 5 months beyond the end of his obligated 3-year plus 12 month extension active duty service requirement per his initial enlistment contract.  The Board found that, per the Commanding Officer’s recommendation for administrative separation, the Applicant re-enlisted on 19990730 for a period of 4 years.  As a result, however, the Applicant did not qualify for discharge for reason of misconduct – pattern of misconduct because that reason required two or more nonjudicial punishments, court-martial, or civil convictions (or combination thereof) during the current enlistment.  The Applicant had only 1 nonjudicial punishment subsequent to 19990730.  Therefore, his misconduct was not a pattern.  The Board specifically considered whether or not the reference to re-enlistment was administrative error and whether or not the nonjudicial punishment for violation of Article 92 of the UCMJ constituted a separate reason for discharge for misconduct – commission of a serious offense.  In light of all the facts and circumstances, the Board found that the preponderance of the evidence supported the conclusion that, while styled an Article 92 offense, Applicant was more likely than not properly punished for a “failure to go” to remedial physical training in violation of Article 86 of the UCMJ.  Such an offense does not constitute misconduct – commission of a serious offense for the purpose of administrative discharge.  After finding the discharge improper, the Board determined that Sailors do not, generally, receive less than honorable discharges for a PRT failure or an incident of failure to go.  Therefore, the Board determined, that the Applicant’s misconduct, while wrongful, did not constitute “significant negative aspects of conduct or performance of duty” that outweighed positive aspects of his service record as defined by regulation for a characterization of service as general (under honorable conditions). 

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, for reasons indicated above, the Applicant’s discharge improper and inequitable and granted relief.

Minority Opinion

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 Dec 1997 until 21 Aug 2002, 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.

C.  The Manual for Courts-Martial does not authorize 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 86, Absence without leave (failure to go to appointed place of duty).

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