FOR
 ex-SA, USN
ND07-00082

Current Discharge and Applicant’s Request:

Application Received:  				20061023
	Characterization of Service:		
	Reason for Discharge:			 - 
	Discharge Authority:			MILPERSMAN 3630600
	Duty Assignment/Command at Discharge:	PERSUPPDET NAVSTA SDIEGO, CA

Applicant’s Request:	
	Characterization change to:		
	Narrative Reason change to: 		
	Review Requested:			
	Representation:				
	
Applicant’s Issues:
1.	Improper discharge based on medical problem.
2.	Inequitable discharge based on service record.

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 1 (Propriety):  The Applicant contends that his discharge should have been based on a personality disorder that his representative claims was diagnosed on 19950803.  This date is more than 3 months after the Applicant’s command notified him that he was recommended for administrative separation due to misconduct for violations of Article 91 (Insubordinate conduct toward a Petty Officer) and Article 92 (Failure to obey a lawful order) of the Uniform Code of Military Justice.  The record clearly indicates the Applicant’s willful misconduct.  Although the Applicant may believe that a personality disorder was the underlying cause of the misconduct, the record contains no evidence that the Applicant was not responsible for his actions.  Even if the Applicant’s command had dual processed him for separation due to both misconduct and personality disorder, the Naval Military Personnel Manual (3620225.8) is clear that he would have been separated for reason of misconduct.   The Board found no evidence to refute the presumption of regularity in Government affairs in this case, and therefore found the discharge proper.

Issue 2 (Equity):  The Applicant’s representative contends that the character of service at the time of discharge was inequitable due to the Applicant’s service record.  When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service as under honorable conditions.  An under other than honorable conditions discharge is warranted when the reason for separation is behavior that constitutes a significant departure from conduct expected of military personnel, or 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 record of service was marred by two nonjudicial punishment proceedings for violations of Articles 86 (Unauthorized Absence), 91 (Insubordinate conduct towards a Petty Officer), and 92 (Failure to obey a lawful order) of the Uniform Code of Military Justice (UCMJ).  Violations of UCMJ Articles 91 and 92 are considered serious offenses, for which a punitive discharge is authorized if adjudged by a Special or General Court-Martial.   Therefore, the Board decided that an upgrade of characterization to General (under honorable conditions) would be inappropriate in this case.

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to refute 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 documents submitted by the Applicant, the Board found the Applicant’s discharge proper and equitable.

Summary of Service:

Prior Service:
Inactive: USNR (DEP)				19931115 - 19940621  ELS
Active:   					

Period of Service Under Review:
Date of Enlistment:  				19940630
Years Contracted:  				; Extension:  
Date of Discharge:				19950809
Length of Service
	Active:					01  Yrs  01  Mths  10  Dys  (does not exclude lost time)
	Time Lost During This Period:		  Days UA:    Days Confinement:  

Education Level:  				
Age at this Enlistment:  				
AFQT:  						45
Highest Rate/Rank:				SA
Performance Evaluation Averages (number of marks):
				Performance: NA/ Behavior: N/A OTA: N/A

Awards and Decorations (as listed on the DD Form 214):  SOUTHWEST ASIA SERVICE MEDAL, ARMED FORCES EXPEDITIONARY MEDAL, BATTLE “E”, NATIONAL DEFENSE SERVICE MEDAL

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

19950413:	NJP for violation(s) of UCMJ:
	Article 86: Without authority, go from appointed place of duty, to wit: Messdeck.
	Article 91: (2 specs),
	Spec 1: Was disrespect in deportment towards a PO1 by sticking his tongue out at him.
	Spec 2: Was disrespect in deportment towards a PO1 by grabbing his crotch and saying “I’m not going to fill any more shakers” or words to that effect.
	Article 92: Failure to obey lawful order by leaving the messdecks and going to the focsle to smoke.
	Award:  Forfeiture of $427.00 for 2 months (1 month suspended for 6 months), restriction and extra duty for 45 days.
	No indication of appeal in the record.

19950417:	PG 13 Counseling/Warning issued by processing command [Extracted from CO’s message].
 
19950419:	Forfeiture of pay awarded at NJP on 19950413 vacated due to continued misconduct

19950419:	NJP for violation(s) of UCMJ:
	Article 86: Failed to go at the time prescribed to his appointed place of duty, to wit: Messdeck on or about 0500, 19950417.
	Article 91: (2 specs),
	Spec 1: Was disrespect in deportment towards a PO1 on or about 19950417.
	Spec 2: Was disrespect in deportment towards a PO1 on or about 19950418.
	Award:  Forfeiture of $427.00 for 1 month, 3 days confinement on bread and water.
	No indication of appeal in the record.

Elements of Discharge:  [INVOLUNTARY]

Date Notified:	19950424
Reason for Discharge	 - 
Least Favorable Characterization Authorized:	

Date Applicant Responded to Notification:	19950424
Rights Elected at Notification:
              Consult with Counsel	
              Obtain Copies of Documents	
              Submit Statement(s) (date)	 
              Administrative Board	
              GCMCA Review	

Commanding Officer Recommendation (date):	 (19950504)
Separation Authority (date):	BUPERS WASHINGTON DC (19950518)
              Reason for discharge directed:	 - 
              Characterization directed:	
Date Applicant Discharged:	19950809

Additional Documents Submitted by Applicant and Considered By Board

Total Number of Pages:				5
       
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 9, effective 
22 Jul 94 until 02 Oct 96, 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 91 and 92.

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