ex-ICFN, USN
ND07-00214

Current Discharge and Applicant’s Request

Application Received:  20061218	Characterization Received:  
Narrative Reason:  MISCONDUCT DUE TO PATTERN OF MISCONDUCT Authority:  MILPERSMAN 1910-140

Applicant’s Request:	Characterization change to:    
			Narrative Reason change to: 
Applicant’s Issues:	1.  Montgomery G.I. Bill
			2.  Post Service – Ohio University Electrical Engineering Student, Alcohol use under control

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:   either  which the Board cannot form the basis of relief for the Applicant, or  the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum regarding.  

Issue 2 ():  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 submitted his statement citing his attendance at Ohio University as an Electrical Engineering student and claiming that he has overcome his alcohol problems as documentation of his 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, a verifiable employment record, documentation of community service, and certification of non-involvement with civil authorities.  The Board determined that the documentation provided by the Applicant did not mitigate the misconduct which resulted in the Applicant’s discharge and characterization of service.  

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence (to include evidence submitted by the Applicant) to rebut the presumption.  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.  A General (under honorable conditions) characterization of service 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 four nonjudicial punishments and two retention warning for violations of UCMJ Articles 86 (unauthorized absence, 6 specifications), 87 (missing movement), 90 (willfully disobeying a superior commissioned officer), 91 (insubordinate conduct, 2 specifications), 92 (failure to obey, 3 specifications), 107 (false official statements), 111 (drunk operation of a motor vehicle), 112 (drunk on watch), and 134 (disorderly conduct and communicating a threat).  These Nonjudicial punishments form the basis for the Applicant’s administrative discharge based on a pattern of misconduct, which is defined as two or more nonjudicial punishments during the same enlistment.  For the information of the Applicant, violations of UCMJ Articles 87, 90, 91, 92, 107, 111, 112, and 134 each carry a penalty of up to a dishonorable discharge and up to 5 years of imprisonment if adjudicated by a court martial.  The Applicant’s conduct, which forms the primary basis for determining the characterization 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 to his characterization of service.

summary of Service

Prior Service:
Inactive: USNR (DEP)	19980826 - 19990627  		Active:   	
Period of Service Under Review:
Date of Enlistment: 19990628	Years Contracted - ;	 Extension:  48 Months; 	Date of Discharge:  20050415
Length of Service:  05 Yrs 09 Mths 18 Dys	Lost Time:  Days UA:  14  
Education Level:  	Age at Enlistment:  18	AFQT:  61	Highest Rank/Rate:  IC1
Evaluation marks (# of occasions):	Performance:  3.5		Behavior:  3.4	 OTA:  3.63 (8) 
Awards and Decorations (per DD 214):  NAVY/MARINE CORPS ACHIEVEMENT MEDAL, MERITORIOUS UNIT COMMENDATION MEDAL, NAVY "E" RIBBON (3), GOOD CONDUCT MEDAL, NATIONAL DEFENSE SERVICE MEDAL, ARMED FORCES EXPEDITIONARY MEDAL, GLOBAL WAR ON TERRORISM EXPEDITONARY MEDAL, GLOBAL WAR ON TERRORISM SERVICE MEDAL, SEA SERVICE DEPLOYMENT RIBBON

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

20040923:	CO's NJP - Viol UCMJ Art. 86 - Unauthorized absence; Viol UCMJ Art. 112 – drunk on duty;  Awarded - FOP – ½ pay for 1 month; RIR to E-4 (suspended for 6 months); Restr for 30 days;  Extra duties 30days.

20040924:	Retention Warning for Article 86 (Unauthorized absence) and 112 (Drunk on watch).

20050123:	Applicant Unauthorized Absent (place of duty) 0730-0830, 0930 found to be under the influence of intoxicating liquor while in a duty status.

20050126:	CO's NJP -- Viol UCMJ Art. 86 – Unauthorized Absence; Viol UCMJ Art. 92 – Failure to obey order; Viol UCMJ Art. 107 – False official statement; Viol UCMJ Art. 111 – Drunken operation of a vehicle; Viol UCMJ Art. 112 – Drunk on duty.  Awarded - FOP - 1/2 pay for 2months (suspended); RIR (E-5); Restr for 45days; Extra duties for 45days, ESWS QUAL pulled.

20050126:	Retention Warning for violations of UCMJ Article 91 - Insubordinate conduct towards a petty officer;  Article 117 - Provoking speeches and gestures; and Article 134 - Communicating a threat.

20050310:	CO's NJP - Viol UCMJ Art. 86 – (3 specs, missing restricted muster) Unauthorized Absence; Viol Art. 90 – (3 specs, missing restricted muster), Failure to obey superior commissioned officer.  Awarded - RIR (suspended for 6 months); Restr for 10days; Extra duties for 10days.

20050327:	Applicant drunk and disorderly at 1700, of a nature to bring discredit upon the armed forces.

20050328:	Applicant to unauthorized absence, 0700.

20050408:	Applicant missed ships movement.

20050411:	Applicant from unauthorized absence, 1200 (14 days)

20050411:	CO's NJP -- Viol UCMJ Art. 86 – Unauthorized absence (14 days); viol UCMJ Art. 87 – Missing movement; Viol UCMJ Art. 134 – Disorderly conduct, drunkenness.  Awarded - FOP - 1/2 pay for 2months; RIR to E-4; Restr for 45 days; Extra duties for 45 days.

20050412:	Administrative remarks:  Applicant acknowledged alcohol Level 1 treatment failure and declined to participate in Level II treatment.

Discharge Process

Date Notified:					20050331
Reason for Discharge:	ALCOHOL REHABILITATION FAILURE
	MISCONDUCT – PATTERN OF MISCONDUCT
	MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE
Least Favorable Characterization:	

Date Applicant Responded to Notification:		20050331
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement (date)			
	Administrative Board			
	GCMCA review				

Commanding Officer Recommendation (date):	
Separation Authority (date):	NOT FOUND IN RECORD
              Reason for discharge directed:	
              Characterization directed:	
Date Applicant Discharged:	20050415

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), re-issued October 2002, effective 22 Aug 2002 until 25 April 2005, 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 violations of UCMJ, Articles 87, 90, 91, 92, 107, 111, 112, and 134

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