ex-TMSR, USN
ND07-00032

Current Discharge and Applicant’s Request:

Application Received:  				20060825
	Characterization of Service:		
	Reason for Discharge:			 - 
	Discharge Authority:			MILPERSMAN 3630600
	Duty Assignment/Command at Discharge:	USS EMORY S. LAND (AS-39)

Applicant’s Request:	
	Characterization change to:		
	Narrative Reason change to: 		
	Review Requested:			
	
Representation:					
	
Applicant’s issues: 
1. Employment enhancement
2. Equity – In Service

Decision:

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

Date of Decision:					20070823
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:	

Issue(s) 1:  The Board determined that this issue is not an issue which can form the basis for relief for the Applicant, or  the Board did not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to page one of the Addendum regarding .  

Issue 2 ().  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 one retention warning, 4 nonjudicial punishment proceedings for violation of Articles 90 (Willfully disobeying a Commissioned Officer), 91 (Disobeying a lawful order), 92 (underage drinking), 108 (Destroying government property) and 134 (Drunk and disorderly) of the UCMJ.  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)				19890808 - 19900708  
Active:   					

Period of Service Under Review:
Date of Enlistment:  				19900709
Years Contracted:  				; Extension:  
Date of Discharge:				19930402
Length of Service
	Active:					02  Yrs  08  Mths  24  Dys  (does not exclude lost time)

Time Lost During This Period:		              20
Days UA:  					20  
Days Confinement:  				

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

Performance Evaluation Averages (number of marks):
Performance: 					2.2(3) 
Behavior: 					2.5(4) 
OTA: 						2.8

Awards and Decorations (as listed on the DD Form 214):  NATIONAL DEFENSE SERVICE MEDAL, JOINT MERITORIOUS UNIT AWARD, SEA SERVICE DEPLOYMENT RIBBON, SOUTHWEST ASIA SERVICE MEDAL W/TWO BRONZE STARS, NAVY UNIT COMMENDATION

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

19920408:	Applicant to unauthorized absence at 0700 on 19920408.

19920408:	Applicant from unauthorized absence at 1230 on 19920408 (5 hours 30 minutes).

19920419:	Applicant to unauthorized absence at 0745 on 19920419.

19920419:	Applicant from unauthorized absence at 0940 on 19920419 (1 hour 55 minutes).

19920428:	Applicant to unauthorized absence at 0700 on 19920428.

19920430:	Applicant from unauthorized absence at 0700 on 19920430 (2 days/surrendered).

19920508:	Applicant to unauthorized absence at 0700 on 19920508.

19920508:	Applicant from unauthorized absence at 1250 on 19920508 (5 hours 50 minutes).

19920610:	Applicant to unauthorized absence at 1800 on 19920610.

19920611:	Applicant from unauthorized absence at 0740 on 19920611 (13 hours 40 minutes).

19920611:	NJP for violation(s) of UCMJ:
	Article 86: UA from 1200-1340, 19920428. 
	Article 91: Willfully disobey a PO1 on 19920428.
	Article 92: Underage drinking on 19920503.
	Article 134: Communicate a threat to injure a PO1, and SN on 19920503. 
	Award:  Forfeiture of $440.00 for 2 months, restriction and extra duty for 45 days, reduction to E-2.
	No indication of appeal in the record.

19920630:	Civil Conviction:  General District Court Criminal Division Norfolk, VA for use of profane language 29-9 CC.
	Sentence: Fined $250.00 plus court cost.

19920713:	Retention Warning:  Advised of deficiency (Violation UCMJ Article 86-UA on 19920428; Article 91-Disobey lawful order from PO1 on 19920428; Article 92-Underage drinking on 19920503; Article 134-Communicate a threat to PO1, PO2, and a SN on 19920503), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

19920714:	Applicant to unauthorized absence at 0700 on 19920714.

19920714:	Applicant from unauthorized absence at 0815 on 19920714 (1 hours 15 minutes).

19920828:	NJP for violation(s) of UCMJ:
	Article 92: Violate lawful general order by wrongfully consuming alcohol beverages under 21 years of age on 19920817.
	Article 134: Disorderly on 19920817. 
	Award:  Forfeiture of $200.00 for 2 months, extra duty for 30 days.
	No indication of appeal in the record.

19920904:	Civil Conviction:  Circuit Court Norfolk, VA for carrying concealed weapon.
	Sentence: 90 days in jail, $250.00 fine.

19920922:	Applicant returned on board at 0715, at Norfolk, VA.
 
19920928:	Applicant to unauthorized absence at 1800 on 19920928.

19920929:	Applicant from unauthorized absence at 0715 on 19910929 (13 hours 15 minutes).

19921104:	NJP for violation(s) of UCMJ:
	Article 91: Willful disobedience of CPO and PO1 on 19921031. 
	Article 108: Destroying glass window in AFT QD shack on 19921031.
	Article 134: (3 specs), Drunk and disorderly on 19921031, Drunk and disorderly on board on 19921031; Underage drinking on 19921031. 
	Award:  Forfeiture of $300.00 for 2 months, restriction and extra duty for 45 days, reduction to E-1.
	No indication of appeal in the record.

19930116:	NJP for violation(s) of UCMJ:
	Article 90: (2 specs), Willfully disobey superior commissioned officer by failing to report for extra duty on 19921215; Willfully disobey superior commissioned officer by failing to report for extra duty on 119921216. 
	Award:  Forfeiture of $300.00 for 2 months, restriction and extra duty for 45 days.
	No indication of appeal in the record.

19930121:	The remaining portion of the 45 days of restriction and 45 days of extra duty awarded at NJP on 19930116 not served is hereby suspended for a period of six months unless sooner vacated.

Elements of Discharge:  [INVOLUNTARY]

Date Notified:					199221113
Reason for Discharge	 - 
	
Least Favorable Characterization Authorized:	

Date Applicant Responded to Notification:		19930121
Rights Elected at Notification:
Consult with Counsel			
Obtain Copies of Documents		
Submit Statement(s) (date)			 
Administrative Board			
GCMCA Review				

Commanding Officer Recommendation (date):	 (19930224)
Separation Authority (date):	BUPERS WASHINGTON DC (19930323)
	Reason for discharge directed:		 - 
	Characterization directed:			
Date Applicant Discharged:			19930402

Additional Documents Submitted by Applicant and Considered By Board

Total Number of Pages:				1
       
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.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 5, effective 
05 Mar 93 until 21 Jul 94, 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, Article(s) 90 (Willfully disobeying a Commissioned Officer), 91 (Disobeying a lawful order), 92 (underage drinking), 108 (Destroying government property) and 134 (Drunk and disorderly) of  the
UCMJ. 

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