ex-EMFN, USN
ND06-01140

Current Discharge and Applicant’s Request:

Application Received:  				20060901
Characterization of Service:			
Narrative Reason for Separation:			 - COMMISSION OF A SERIOUS OFFENSE
Discharge Authority:				MILPERSMAN 3630600
Last Duty Assignment/Command at Discharge:	SPECBOAT U-13, nab coronado, ca

Applicant’s Request:	
	Characterization change to:		
	Narrative Reason change to: 		
	Review Requested:			
Representation:  					

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:	
 (BCD only) The Board found that clemency was: 	

By a vote of  the Characterization shall  .	
By a vote of  the Narrative Reason shall   - COMMISSION OF A SERIOUS OFFENSE.

Applicant’s Issues as Summarized by the Board:

1.  Equity – In Service  
2.  Equity - Post Service 

Summary of Service:

Prior Service:
Inactive: USNR (DEP)				19860905 - 19860915 
Active:   USN					19860916 - 19900609 
Period of Service Under Review:
Date of Enlistment:  				19900610
Years Contracted:  				
Date of Discharge:				19920706
Length of Service:				02  Yrs  00  Mos  27  Days
Time Lost During This Period:			8
Days Unauthorized Absence:			8
Days Confinement:				0

Education Level:  				
Age at this Enlistment:  				
AFQT:  						54
Highest Rate/Rank:				EM3

Performance Evaluation Averages (number of marks):
Performance:					3.7 (4)
Behavior:					3.4 (4)
OTA:						3.55

Awards and Decorations (as listed on the DD Form 214):  SEA SERVICE DEPLOYMENT RIBBON(02); ARMED FORCES EXPEDITIONARY MEDAL; COMBAT ACTION RIBBON; NATIONAL DEFENSE SERVICE MEDAL; SOUTHWEST ASIA SERVICE MEDAL W/BRONZE STAR; KUWAIT LIBERATION MEDAL; PISTOL/RIFLE EXPERT AWARD;

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

19910920:	Applicant to unauthorized absence 0730.

19910920:	Applicant apprehended by civil authorities at 2000 by Florida State Police.

19910926:	Applicant declared a deserter based on intentions.

19910928:	Applicant from unauthorized absence 2115 (8 days/apprehended).

19911007:	NJP for violation(s) of UCMJ:
	Article 86:  On or about 19910920 without authority absent himself from his unit and did remain so absent until he returned on or about 2115, 19910928.
	Article 87:  On or about 19910920 through 19910924 through neglect miss the movement of SEAFOX 808.
	Article 134 (4 specifications):
	Specification 1:  On or about 19910816 make and utter to the Florida Navy Exchange a check in the amount of $150.00 and did thereafter dishonorably fail to maintain sufficient funds in the Navy Federal Credit Union.
	Specification 2:  On or about 19910828 make and utter to the Florida Navy Exchange a check in the amount of $150.00 and thereafter dishonorably fail to maintain sufficient funds in the Navy Federal Credit Union.
	Specification 3:  On or about 19910818 make and utter to the Florida Navy Exchange a check in the amount of $150.00 and did thereafter dishonorably fail to maintain sufficient funds in the Navy Federal Credit Union.
	Specification 4:  On or about 19910819 make and utter to the Florida Navy Exchange a check in the amount of $150.00 and did thereafter dishonorably fail to maintain sufficient funds in the Navy Federal Credit Union.
	Award:  Extra duty for 45 days, reduction to E-3.
	No indication of appeal in the record.

19920506:	NJP for violation(s) of UCMJ:
	Article 91:  On or about 2310, 19920403 was disrespectful in language toward BT3 S_ and GMG2 D_ by saying to them “Why don’t you get that big fat f--- who had my car; I’ll remember you didn’t see me driving my car; just wait, I’ll get you on the outside”.
	Article 92:  On or about 2310, 19920403 fail to obey a lawful order by wrongfully possessing intoxicating liquor in open containers in a motor vehicle.
	Article 107:  On or about 1220, 19920402 with intent to deceive make an official statement to GMG2 D_, to wit: “I aint done s---.  I wasn’t driving.  You just saw my car go by and tried to get that black f----- who had my car”.
	Article 111:  Operate a vehicle while drunk.
	Article 128:  On or about 1015, 19920428 unlawfully strike EM3 M_ about the head and face with his fist.
	Article 134:  On or about 2310, 19920403 was drunk and disorderly which conduct was of a nature to bring discredit upon the Armed Forces.
	Award:  Forfeiture of $521.00 for 2 months, restriction and extra duty for 45 days, reduction to E-3.
	No indication of appeal in the record.

19920522:	Applicant notified of processing for administrative discharge by reason of alcohol abuse rehabilitation failure.  Applicant afforded the opportunity to receive 30 days VA treatment for his alcohol dependency prior to separation.   Applicant did not elect treatment.

19920605:	Drug and Alcohol Evaluation:  Center’s Assessment:  Applicant does not appear to be dependent on alcohol at the present time; however, he has shown poor judgment and irresponsibility in his drinking behavior.  Applicant should be screened by medical to rule out dependency.  Applicant is recommended for separation.

19920611:	Drug and Alcohol Abuse Report:  Alcohol abuse, 1 to 3 times per week, ashore off duty.  Method of identification:  Military police on 19920403.   Physician found applicant not dependent and recommended separation.  Commanding Officer recommended separation.  Comments:  Average past performance.  Poor potential for further service.  Processing for separation.

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

NONE

Elements of Discharge:  [INVOLUNTARY]

Discharge Process:				
Date Notified:					19920522
Reason for Discharge				  due to:  
Least Favorable Characterization:			
Record Supports Narrative Reason:			
Date Applicant Responded to Notification:		19920524
Rights Elected at Notification:
Consult with Counsel			
Administrative Board			
Obtain Copies	  			
Submit Statement(s) (date)			
GCMCA Review				

Recommendation of Commanding Officer (date):	 (19920611)
Separation Authority (date):	BUPERS (19920619)
Narrative reason directed:				
Characterization directed:	
Date Applicant Discharged:			19920706

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:				17
	Other Period of Service:				0
       Related to Post-Service Period:
	Community Service:				0
	Education:					3
	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:				20

Decisional Issues:

Issue 1 ().  The Applicant contends he served honorably in combat and the discharge was too harsh.  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 nonjudicial punishment proceedings for violations of UCMJ Articles 86 (unauthorized absence), 87 (missing movement), 91 (disrespectful in language towards a petty officer), 92 (failure to obey a lawful order), 107 (false official statement), 111 (drunken driving), 128 (assault) and 134 (checks worthless making and uttering).  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.  Relief denied.    

Issue 2 ().  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of the Applicant’s case.  There is no law or regulation, which provided 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 should be provided to the Board include verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of no involvement with civil authorities.  As of this time the Applicant has not provided sufficient post service documentation to consider mitigating the misconduct that resulted in the characterization if discharge.  Relief denied.

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), effective 15 August 1991 until 04 March 1993, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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, Articles 87 (missing movement), 91 (Disrespectful in language towards a petty officer), 92 (Failure to obey a lawful order), 107 (false official statement), 111 (Drunken driving), 128 (Assault) and 134 (Checks worthless making and uttering)..

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