ex-EN3, USN
ND07-00028

Current Discharge and Applicant’s Request:

Application Received:  				20061005
	Characterization of Service:		
	Reason for Discharge:			 - 
	Discharge Authority:			MILPERSMAN 1910-144
	Duty Assignment/Command at Discharge:	COMFLEACT YOKOSUKA, JAPAN

Applicant’s Request:	
	Characterization change to:		
	Narrative Reason change to: 		
	Review Requested:			
	Representation:				
	Issues (as summarized by NDRB):		Equity -- benefits
							
Decision:

By a vote of  the Characterization shall  .	
By a vote of  the Reason for Discharge shall   - .

Date of Decision:					20060823
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  (Equity).   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 .  

The Applicant requests upgrade of his characterization of discharge.  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 characterization 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 a non-judicial punishment proceedings for violations of Article 92 (violation of an order) and for a civilian conviction for aggravated assault on a Japanese national for which he was confined for 2 years and 6 months.  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.

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.

Summary of Service:

Prior Service:
Inactive: USNR (DEP)				19990216 - 19990330  
Active:   

Period of Service Under Review:
Date of Enlistment:  				19990331
Years Contracted:  				; Extension:  
Date of Discharge:				20051219
Length of Service
	Active:					06  Yrs  08  Mths  19  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:  						40
Highest Rate/Rank:				EN3

Performance Evaluation Averages (number of marks):
				Performance: 3.3(7) Behavior: 3.3(7) OTA: 3.20

Awards and Decorations (as listed on the DD Form 214):  NATIONAL DEFENSE SERVICE MEAL, OVERSEAS SERVICE MEDAL (2ND) NAVY GOOD CONDUCT MEDAL, GLOBAL WAR ON TERRORISM SERVICE MEDAL

Service Record Entries Related to Characterization of Service or Reason for Discharge

20020927:	Applicant to TAD for treatment to Naval Hospital Yokosuka.  [Extracted from Evaluation Report and Counseling Record for period 20020616 to 20021218.]

20021205	NJP for violation(s) of UCMJ:
	Article 92: Failure to obey lawful written order.
	Award:  Forfeiture of $834.00 for 2 months, restriction for 60 days.
	No indication of appeal in the record.

20021218:	Applicant from TAD to Naval Hospital Yokosuka.  [Extracted from Evaluation Report and Counseling Record for period 20020616 to 20021218.]

20021219:	Applicant to medical hold.  [Extracted from Evaluation Report and Counseling Record for period 20021219 to 20030615.]

20030223:	Applicant released from medical hold.  [Extracted from Evaluation Report and Counseling Record for period 20021219 to 20030615.]

20040108:	Civil Conviction [Yokosuka Branch, Yokohama District Court] for violation of Article 204 of the Criminal Code - (aetatis 40) by means of inflicting bodily injury.
	Sentence:  Imprisonment for 2 years and six months..
	20040607 Appeal to Tokyo High Court was dismissed and judgment became final.  

Medical Record Entries Related to Characterization of Service or Reason for Discharge

20030317:	Othopedic Clinic, Tripler Army Medical.  DOS 7 Mar 03 S/P Cav correct claw toe correct Perutaneus TAC Pav controlled Roxice
	PE_  Toes well aligned, Pins C/D
	No disen_____
	Incision well approx.
	FX Blister Plantar PIpJ 2nd, 3rd, 4th
	CAP refill
	Sensation @ Base toe
A)	Healing
P)	Sutures removed today
Short leg NWBC Toe Plate/ Bivalved for ____
F/U Japan Ortho – 4 weeks post op
For pin removal, cast to be left on from toes
F/U 6 weeks for x-rapys if 1st Mt OSHDMY.  Healing May go to CAM Waller, & start physical therapy for ankle ROM.  

Elements of Discharge:  [INVOLUNTARY]

Date Notified:					20040921
Reason for Discharge	 - 
	 - 
Least Favorable Characterization Authorized:	

Date Applicant Responded to Notification:		20040921
Rights Elected at Notification:
Consult with Counsel			
Obtain Copies of Documents		
Submit Statement(s) (date)			
Administrative Board			
GCMCA Review				

Commanding Officer Recommendation (date):	 (20041116)
Separation Authority (date):	COMMANDER, U.S. NAVAL FORCES, JAPAN (20041123)
	Reason for discharge directed:		 - 
	Characterization directed:			
Date Applicant Discharged:			20051219

Additional Documents Submitted by Applicant and Considered By Board

Total Number of Pages:				144
       
Related to Period of Service Under Review:
	From Service and/or Medical Record:		Other Records:	

Related to Other Period(s) of Service:
	From Service and/or Medical Record:		Other Records:	
       
Related to Post-Service Period:
	Employment:					Finances:	
	Health/Medical Records:				Substance Abuse:	
	Family/Personal Status:				Education:	
 	Community Service Efforts:			References:	
	Criminal Records:			

Other:
	Additional Statements From Applicant:		From Representative:	
        	Other Documentation (Describe)		      

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 12, effective 28 July 2005 until Present, Article 
1910-144, Separation by Reason of Misconduct - Civilian Conviction.

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 an order) and 128 (assault).

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