ex-SKSR, USN
ND07-00131

Current Discharge and Applicant’s Request

Application Received:  20061113 	Characterization Received:  
Narrative Reason:  PATTERN OF MISCONDUCT Authority:  MILPERSMAN 3630600

Applicant’s Request:	Characterization change to:    
			Narrative Reason change to: 
Applicant’s Issues:	1. Discharge Improper
			2. Quality of Service not reflective in Discharge
			3. Post Service

Decision

By a vote of  the Characterization shall  .	
By a vote of  the Narrative Reason shall  PATTERN OF MISCONDUCT.

Date:  20070906	  Location:  Washington D.C.  The Board found that 

Discussion

Issue 1: ().  The Applicant contends that his discharge was improper because the discharge resulted from an operational deployment taking priority over treatment ordered by a civilian court.  The Board considered the Applicant’s entire military record and found that the Applicant was the subject of three nonjudicial punishments for violations of the Uniform Code of Military Justice (UCMJ), one retention warning, and one conviction of a civil offense, all incidents unrelated to the incident identified by the Applicant. Violations of the UCMJ included: Article 134 (Drunk and disorderly), Article 92 (Failure to obey a lawful order), Article 107 (False official statement), and Article 111 (Drunken operation of a vehicle).  The Civil conviction was for carrying a concealed weapon.  Violations of UCMJ Articles 92, 107, 111 and the civil offense are considered serious offenses for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial.  An upgrade to honorable would be inappropriate.

Issue 2: ().  When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  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 conduct during the current period of service, which forms the primary basis for determining the character of his service was marred by the award of one retention warning, three nonjudicial punishments (NJP) for violations of UCMJ, Articles 92, 107, 111, and 134, and one conviction of a Civil offense.  Violations of Articles 92, 107, and 111of the UCMJ and the civil conviction are considered serious offenses for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial.  An upgrade to honorable would be inappropriate.  

Issue 3: ().  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.  Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  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 provided four character statements as documentation of 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, documentation of continuous employment, and more encompassing, recent documentation of community service.  The Board determined that the documentation provided by the Applicant did not mitigate the misconduct that resulted in the characterization of discharge.

Summary of Service

Prior Service:
Inactive: USNR (DEP)	19920113 - 19920915  	
Active:   	        
Period of Service Under Review:
Date of Enlistment: 19920916	Years Contracted:  4; Extension:    	Date of Discharge:  19950317
Length of Service:    02 Yrs  06  Mths  02  Dys	Lost Time:  Days UA:    Days Confined:  
Education Level:  12	Age at Enlistment:  30	AFQT:  44	Highest Rank/Rate:  SKSN
Evaluation marks (# of occasions):	Performance:  3.33(3)	Behavior:  3.33(3)	 OTA:  3.47 
Awards and Decorations (per DD 214):  NATIONAL DEFENSE SERVICE MEDAL; USCG SPECIAL OPERATIONS SERVICE RIBBON; SOUTHWEST ASIA SERVICE MEDAL; ANARTIC SERVICE MEDAL; RIFLE (MARKSMAN)

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

19920919:	Applicant briefed on Navy's policy of drug and alcohol abuse.

19940202:	CO's NJP -- Viol UCMJ Art. - 134 (Drunk and disorderly).  Awarded - FOP $239.00 for 1 month; RIR to SKSA; and restriction for 14 days.

19940324:	CO's NJP -- Viol UCMJ Art. 92 – (Failure to obey a lawful order), Art 107 (false official statement).
	Awarded: Forfeiture of $$416.00 per month for 2 months, restriction and extra duty for 45 days, reduction to SKSR.

19940425:	Retention Warning for (UA from restricted men muster on 19940416 at 0630 and 19940417 at 0630, on 19940416 you were late for 0630 restricted men muster on the quarterdeck, you arrive on the quarterdeck at 0650, and 199404 17 you arrived on the quarterdeck at 0725.) notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

19940511:	Medical Record:  Command Referral for Alcohol Screening.  Assessment:  Is not ETOH dependent and does not require detoxification.  Do recommend C.A.A.C. Evaluation/Treatment Level II.  Plan:  Command counseling recommended.

19941227:	Civil Conviction:  Norfolk traffic Court for Violation of Civil Statute 18-2-306 5C (carrying a concealed weapon).  Sentence:  2 Days confinement in Norfolk city jail and fined $312.00.

19950215:	CO's NJP -- Viol UCMJ Art. 111 (Drunken operation of a vehicle) [Extracted from NAVPERS 1070/609 and CO’s transmittal letter]  Reduction documentation found in Change of Rank portion of Training and Awards.  [No further information available.].

Discharge Process

Date Notified:					NOT FOUND IN RECORD
Reason for Discharge:	 - 
	 - 
	
Least Favorable Characterization:	

Date Applicant Responded to Notification:		19950215 [Extracted from CO’s ltr of transmittal]
Rights Elected at Notification:
	Consult with Counsel			  [Extracted from CO’s ltr of transmittal]
	Obtain Copies of Documents		  [Extracted from CO’s ltr of transmittal]
	Submit Statement(s) (date)			  [Extracted from CO’s ltr of transmittal]
	Administrative Board			  [Extracted from CO’s ltr of transmittal]
	GCMCA review				

Commanding Officer Recommendation (date):	 (19950221)
Separation Authority (date):	NAVPERSCOM (19950307)
              Reason for discharge directed:	 - 
              Characterization directed:	
Date Applicant Discharged:	19950317

Types of Documents Submitted by Applicant and Considered By Board

Related to Military Service:	Service and/or Medical Record:  		Other Records:  

Related to Post-Service Period:  	
	Employment:  			Finances:  			Education: 		
	Health/Medical Records:  		Substance Abuse:			Criminal Records:  	
	Family/Personal Status: 		Community Service:  		References:  		
	
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 - 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, Articles 92 (Failure to obey a lawful order), Article 107 (False official statement), and Article 111 (Drunken operation of a vehicle).  

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 to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC  20301-4000.  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