ex-SA, USN
ND06-01176

Current Discharge and Applicant’s Request:

Application Received:  				20060908     
Characterization of Service:			
Narrative Reason for Separation:			MISCONDUCT - 
Discharge Authority:				MILPERSMAN 3630600
Last Duty Assignment/Command at Discharge:	USS ARKANSAS (CGN41)

Applicant’s Request:	
	Characterization change to:		
	Narrative Reason change to: 		
	Review Requested:			
	Representation:				VA Administration, LA California
Issues (as summarized by NDRB):			1.  Falsely accused of criminal mischief.
						2.  Post service – employed, attended college, respected citizen.

Decision:

By a vote of  the Characterization shall  .	
By a vote of  the Narrative Reason shall  -Pattern of Misconduct.

Date of Decision:					20070809
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:	

Discussion

Issue 1 ().  The Applicant states his discharge was based on his being falsely accused of criminal mischief due to personal bias.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his claim.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was falsely accused.  To the contrary the record documents the Applicant’s three nonjudicial punishments for violations of UCMJ Articles 86 (unauthorized absence, 3 specifications) and 92 (failure to obey an order, 3 specifications) as well as two retention warnings.  These violations form the basis for the pattern of misconduct reason for discharge.  The Applicant was properly processed for separation in accordance with NAVPERS 15560C, he waived his rights to seek counsel and to be heard before an administrative discharge board.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  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 “under 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.   In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considers his discharge proper and equitable.  

Issue 2 ().  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.  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 stated that he is employed, has attended college and is a respected citizen however; he provided no 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 evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, and certification of non-involvement with civil authorities.  The Board determined that the documentation provided by the Applicant did not mitigate the misconduct which resulted in the characterization of his service at discharge.  

Summary of Service:

Prior Service:
Inactive: USNR (DEP)				19891006-19891101 
Active:   										       

Period of Service Under Review:
Date of Enlistment:  				19891102     
Years Contracted:  				     
Date of Discharge:				19920421
Length of Service
	Active:					02  Yrs  05  Mths  20  Dys  (does not exclude lost time)
	
Time Lost During This Period:			Days UA: 28	Days Confinement:  None

Education Level:  				
Age at this Enlistment:  				29
AFQT:  						42
Highest Rate/Rank:				SN

Performance Evaluation Averages (number of marks):
				Performance: 2.7 Behavior: 2.6  OTA: 3.00(5)

Awards and Decorations (as listed on the DD Form 214):  JOINT MERITORIOUS UNIT AWARD, NATIONAL DEFENSE SERVICE MEDAL, SOUTHWEST ASIA SERVICE MEDAL WITH BRONZE STAR, COAST GUARD SPECIAL OPERATIONS SERVICE RIBBON, SEA SERVICE DEPLOYMENT RIBBON WITH BRONZE STAR 

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

19910108:	Retention Warning:  Advised of deficiency (Violation of UCMJ, Article 86: Absent from unit), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

19910110:	NJP for violation of UCMJ:
	Article 86: Absence from unit 
	Award:  Forfeiture of $100.00 for 1 month, restriction and extra duty for 15 days.
	
19910718:	NJP for violations of UCMJ:
	Article 92: Failure to obey a lawful order. 
	Article 92: Failure to obey a lawful written order. 
	Award:  Restriction and extra duty for 30 days.
	
19910718:	Retention Warning:  Advised of deficiency (Violation of UCMJ, Article 92 (2 counts) failure to obey a lawful written order), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

19911226:	Retention Warning:  Advised of deficiency (UA from 0200 to 0630 19911211.  Additionally, you have been late to Quarters numerous times.  One more incident of UA will result in your being separated from the United States Naval Service), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

19920206:	Applicant to unauthorized absence at 0720 on 19920206.

19920306:	Applicant from unauthorized absence at 0720 on 19920306 (28 days/returned).

19920312:	NJP for violations of UCMJ:
	Article 86: Absence without leave.
	Article 92: Failure to obey lawful order.
 	Article 86: Absence from appointed place of duty. 
	Award:  Forfeiture of $100.00 for 2 months, restriction and extra duty for 45 days, reduction to E-2.

Elements of Discharge:  [INVOLUNTARY]

Date Notified:					19920317
Reason for Discharge				  due to:  
				
Least Favorable Characterization Authorized:	UNDER OTHER THAN HONORABLE

Date Applicant Responded to Notification:		19920318
Rights Elected at Notification:
Consult with Counsel			
Administrative Board			
Obtain Copies	  			
Submit Statement(s) 			       
GCMCA Review				
						
Commanding Officer Recommendation (date):	OTHER THAN HONORABLE (19920327)
Separation Authority (date):	BUPERS (19920415)
	Narrative reason directed:			MISCONDUCT (PATTERN)
	Characterization directed:			OTHER THAN HONORABLE
Date Applicant Discharged:			19920421

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:				     
       Related to Post-Service Period:
	Community Service:				     
	Education:					     
	Employment:					     
	Health/Medical:					     
	Character Statements:				     
	Criminal Records Checks:				     
	Additional Statements from Applicant:		     
        Other Documentation	 (Describe Below)		1     

        Total Number of Pages:				3     

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C, effective 15 Aug 91 until 
04 Mar 93), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - A 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 92 (failure to obey).

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