ex-SR, USN
ND06-01120

Current Discharge and Applicant’s Request:

Application Received:  				20060821
Characterization of Service:			
Narrative Reason for Separation:			
Discharge Authority:				MILPERSMAN 1910-140
Last Duty Assignment/Command at Discharge:	uss carr (ffg 52)

Applicant’s Request:	
	Characterization change to:		
	Narrative Reason change to: 		
	Review Requested:			
Representation:  					
Issues (as summarized by NDRB):			1.  Reenlist

Decision:

Date of Decision:					20070727
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)				20030424 - 20030601 
Active:   					NONE
Period of Service Under Review:
Date of Enlistment:  				20030602
Years Contracted:  				
Date of Discharge:				20040730
Length of Service:				01Yrs 01 Mos 29  Days
Time Lost During This Period:			73
Days Unauthorized Absence:			76

Education Level:  				
Age at this Enlistment:  				
AFQT:  						49
Highest Rate/Rank:				SA

Performance Evaluation Averages (number of marks):
Performance:					1.0 (1)
Behavior:					1.0 (1)
OTA:						1.00

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

20040311:	Applicant to unauthorized absence.  [Extracted from DD Form 214, Block 29.]

20040323:	Applicant from unauthorized absence (11 days).  [Extracted from DD Form 214, Block 29.]

20040325:	Applicant to unauthorized absence at 0700.  [Extracted from DD Form 214, Block 29.]

20040424:	Applicant declared deserter.

20040521:	Applicant from unauthorized absence (58 days).  [Extracted from DD Form 214, Block 29.]

20040527:	Applicant to unauthorized absence.  [Extracted from DD Form 214, Block 29.]

20040601:	Applicant from unauthorized absence (4 days).  [Extracted from DD Form 214, Block 29.]

20040603:	NJP for violation of UCMJ:
	Award:  Forfeiture of ½ pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.
	No indication of appeal in the record.

20040604:	Applicant notified of his intended recommendation for discharge with the least favorable characterization of service as under other than honorable by reason of misconduct due to a pattern of misconduct. 

20040604:	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.

20040708:	Commanding Officer, USS CARR (FFG 52), recommended to Commander, Cruiser-Destroyer Group EIGHT, via Commander, Destroyer Squadron TWO the Applicant’s discharge with a service characterization of under other than honorable conditions by reason of misconduct due to a pattern of misconduct.  Commanding Officer’s comments:  “SR S_ (Applicant) decided to take unauthorized leave of his duties and commitments to the Navy and his shipmates during a crucial shipyard period.  Despite the urging of his command and his family to return, he went UA on three different occasions.  His continued inability to exercise and semblance of self-discipline in his professional or personal life clearly warrants an other than honorable discharge.”

20040727:	Commander, Cruiser-Destroyer Group EIGHT directed the Applicant's discharge under other than honorable conditions due to misconduct by the commission of a serious offense.

20040730:	Applicant discharged under other than honorable conditions due to misconduct by the commission of a serious offense.
 .

Elements of Discharge:  [INVOLUNTARY]

Date Notified:					20040604
Reason for Discharge	  due to:  
Least Favorable Characterization:			
Date Applicant Responded to Notification:		20040604
Rights Elected at Notification:
Consult with Counsel			
Administrative Board			
Obtain Copies	  			
Submit Statement(s) (date)			
GCMCA Review				

Recommendation of Commanding Officer (date):	 (20040708)
Separation Authority (date):	COMMANDER, CRUISER-DESTROYER GROUP EIGHT (20040727)
Narrative reason directed:				
Characterization directed:	
Date Applicant Discharged:			20040730

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

Discussion

Issue 1 (reenlistment):   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:

For the information of the Applicant, the Board did note a discrepancy in the record.  The Applicant was notified of discharge by reason of misconduct due to a pattern of misconduct and discharged due to misconduct by the commission of a serious offense.  The Board determined that this was merely an administrative error and did not result in prejudice to the Applicant.  The processing and other than honorable conditions discharge are the same for both causes of discharge.  The Applicant waived his right to counsel and the separating authority corrected the error prior to the Applicant’s discharge.

Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  The record documents the Applicant’s violation of UCMJ Article 86 (unauthorized absence, 56 days).  Unauthorized absences in excess of 30 days constitute the “commission of a serious offense”, the discharge basis in this case.  The Board could discern no impropriety (which resulted in prejudice against the Applicant) or inequity and therefore considers his discharge proper and equitable.  

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence (from the Applicant’s Summary of Service, Service Record Entries, Medical Record Entries, Elements of Discharge, and evidence submitted by the Applicant) to rebut the presumption.  

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.

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 86, unauthorized absence in excess of 30 days.

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