ex-MMFR, USN
ND07-00178

Current Discharge and Applicant’s Request

Application Received:  20061124 	
Characterization Received:  
Narrative Reason:  PATTERN OF MISCONDUCT Authority:  MILPERSMAN 1910-142

Applicant’s Request:	Characterization change to:    
			Narrative Reason change: 
Applicant’s Issues:	1.  Change in character / maturation

Decision

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

Date:  20070920  					Location:  Washington D.C. 

Discussion

Issue 1 ():  The Applicant contends that his discharge was inequitable because of his immaturity at the time of his service and misconduct.  The Board reviews the propriety and equity of each Applicant’s discharge individually.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the naval service.  Based upon the record, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy.  The evidence of record (three NJP’s, Article 86x2, Article 91 and Article 134 x5, a retention warning and Level I and III alcohol treatment) supported the pattern of misconduct for which the Applicant was administratively discharged. That separation was proper and a service characterization of under other than honorable conditions is equitable. 

Summary of Service

Prior Service:
Inactive: USNR (DEP)	19960306 - 19960909  		Active:   
Period of Service Under Review:
Date of Enlistment: 19960910	Years Contracted:  4;	Date of Discharge:  19981217
Length of Service:  2 Yrs 3 Mths 8 Dys		Lost Time:  
Education Level:  12	Age at Enlistment:  17	AFQT:  42	Highest Rank/Rate:  MMFN
Evaluation marks (# of occasions):	Performance:  2.0		Behavior:  2.0	 OTA:  1.83 (1) 
Awards and Decorations (per DD 214):  MARKSMAN M-16A1 RIBBON

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

19970731:	Bangor Subase Police turn-over of Applicant to USS MCKEE CDO, following incident at club on base.  Applicant BAC .070 at 0310.

19970802:	CO's NJP -- Viol UCMJ Art. 91 - Disrespect, Art 134 Drunk and Disorderly.  Awarded - FOP (1/2 pay per month for 2 months) and Restriction (60 days).  (FOP 1/2 pay per month for 2 months suspended for six months).  

19970802:	Retention Warning for CO’s NJP of 19970802 for VUCMJ Art 91 – Disrespect towards SUBBASE Bangor security personnel and Art 134 – Drunk and Disorderly.

19980206:	Successfully completed Alcohol Impact, Level I treatment.

19980404:	Unauthorized absence, place of duty 0630, .038 BAC at 1300.

19980410:	CO's NJP -- Viol UCMJ Art. 86 - Unauthorized absence, Art 134 --Under Age drinking.
	Awarded -Restriction and extra duty for 45 days (35 days suspended for 6 months).  

19980420:	Applicant to Substance Abuse Rehabilitation Department, Medical Hospital, San Diego.

19980515:	Applicant from Substance Abuse Rehabilitation Department, Medical Hospital, San Diego.

19980814:	Vacation of punishment suspended at Captain’s Mast of 19980410 for continued misconduct.

19981006:	Unauthorized absence, place of duty on duty day, 0730-1230, BAC .007 at 1300.

19981022:	Medical Officer, USS MCKEE (AS-41), found Applicant not fit for duty due to alcoholic incapacitation, .16 BAC at 0800.

19981027:	CO's NJP -- Viol UCMJ Art. 86 - Unauthorized absence, Art 134 (3 specs) – Incapacitated for the Performance of Duty/Under Age drinking.  Awarded - FOP (1/2 pay per month for 2 months) and Restriction (60 days).

19981106:	Commanding Officer, USS MCKEE (AS-41) recommended the Applicant’s discharge to Commander Submarine Force, U. S. Pacific Fleet.  Commanding Officer’s comments, “MMFR H_’s (Applicant) underage drinking and alcohol abuse persists despite extensive counseling and assistance to correct this behavior.  He attended Level III Alcohol Rehabilitation in April 1998 but remains unwilling to control his use of alcohol.  This has led to MMFR H_’s dereliction in performing his duties and three Captain’s Masts that found him guilty of a number of violations of the UCMJ.  MMFR H_ is not interested in meeting the required standards, and I recommend that he be separated from the Navy with and Other than Honorable discharge as warranted by his misconduct.”

Discharge Process

Date Notified:					19981027
Reason for Discharge:	 - 
	 - 
	
Least Favorable Characterization:	UNDER OTHER THAN HONORABLE

Date Applicant Responded to Notification:		19981027
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			  
	Administrative Board			
	
Commanding Officer Recommendation (date):	OTHER THAN HONORABLE (19981106)
Separation Authority (date):	CDR SUBPACFLT (19981130)
              Reason for discharge directed:	
              Characterization directed:	OTHER THAN HONORABLE
Date Applicant Discharged:	19981217

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)  WAIVER APPROVAL TO JOIN THE CALIFORNIA NATIONAL GUARD

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 Dec 1997 until 21 Aug 2002, Article 1910-140 (formerly 3630600), SEPARATION 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, Article 91.

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