ex-AN, USNR
ND07-00134

Current Discharge and Applicant’s Request

Application Received:  20061113 Characterization received: UNDER OTHER THAN HONORABLE CONDITIONS 	 
Narrative Reason:  MISCONDUCT Authority:  MILPERSMAN 3630600

Applicant’s Request:	Characterization change to:    
			Narrative Reason change to: 
Applicant’s Issues:	1. Applicant claims no admin board was held in the case.
			2. In Service – Equity
			3. Post service - Equity

Decision

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

Date:  20070912  Location:  Washington D.C.  The Board found that 

Discussion

Issue 1 ():  The Applicant claims no administration separation board was held in this case.  After a review of the Applicants records concerning this case, it was discovered the Applicant waived his right to an administrative board.  Based on the evidence of record, the Board found the Applicant’s claim to be unfounded.

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 nonjudicial punishment proceeding for violations of Articles 92(failure to obey and order) and 134(Obstructing justice) 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.  

Issue 3 ():  The Board discovered no impropriety after a review of Applicant’s case.  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 should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided sufficient post-service documentation to consider mitigating the misconduct that resulted in the characterization of discharge.  

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, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found the Applicant’s discharge proper and equitable.

Summary of Service

Prior Service:
Inactive: USNR (DEP)	19920505 - 19920908  	
Active:   	
Period of Service Under Review:
Date of Enlistment: 19920909	Years Contracted:  8; Extension:    	Date of Discharge:  19940615
Length of Service:  01  Yrs  09  Mths  07  Dys	Lost Time:  Days UA:    Days Confined:  
Education Level:  12	Age at Enlistment:  19	AFQT:  52	Highest Rank/Rate:       
Evaluation marks (# of occasions):	Performance:  3.10(2)	Behavior:  3.20(2)	 OTA:  3.30 
Awards and Decorations (per DD 214):  NATIONAL DEFENSE SERVICE MEDAL, SEA SERVICE DEPLOYMENT RIBBON, SOUTHEAST ASIA SERVICE MEDAL W/1 BRONZE STAR, ARMED FORCES EXPEDITIONARY MEDAL, NAVY BATTLE “E” ROBBON.

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

19940518:	CO's NJP -- Viol UCMJ Art. 86 - Unauthorized absence on 19940508, Article 92 -- failure to obey an order (4 specs), Article 134 – Obstructing justice.  Awarded - FOP $ 484; RIR to E-2 (susp for 6 months); and 30 days CCU.

19940524:	Naval Hospital, Jacksonville.  Hospitalized from 19940522 to 19940524.  Admit diagnosis:  Adjustment Disorder with depressed mood/ Personality Disorder, NOS.  Discharge diagnosis:  same.  Member has a severe personality disorder and is impaired for Naval Service.  Though not actively suicidal/homicidal he is judged to be a continuing risk to self or others under routine military stress.  Recommend expeditious admin separation.  Not recommended for return to CCU.

19940524:	Message from Naval Hospital Jacksonville to HELANISUBRON Eleven.  Subject member released to your command on 19940524 following psychiatric evaluation.  Attending psychiatrist advises:  The member is not considered mentally ill, but manifests a long standing disorder of character and behavior which is of such severity as to render this individual incapable of serving adequately in the Navy.  This member does not presently require, and will not benefit from, hospitalization or psychiatric treatment.  Although not considered suicidal or homicidal, this member is judged to represent a continuing risk to self or others if retained in the Naval service.  This member is deemed fit for return to duty for immediate processing for administrative separation which should be initiated expeditiously in compliance with NAVMILPERSMAN 3620225.

Discharge Process

Date Notified:					19940525
Reason for Discharge:	 - 
	 - 
	
Least Favorable Characterization:	

Date Applicant Responded to Notification:		19940525
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			  (NOT FOUND IN RECORD)
	Administrative Board			
	GCMCA review				

Commanding Officer Recommendation (date):	 (19940526)
Separation Authority (date):	COMNAVPERSCOM (19940606)
              Reason for discharge directed:	 - 
              Characterization directed:	
Date Applicant Discharged:	19940615

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)  Veteran's benefits

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 92(failure to obey an order) and 134(obstructing justice.)

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