ex-ADAA, USN
ND07-00217

Current Discharge and Applicant’s Request

Application Received:  20061218 	Characterization Received:  
Narrative Reason:  MISCONDUCT 	Authority:  MILPERSMAN 1910-142

Applicant’s Request:	Characterization change to:    
			Narrative Reason change: 
Applicant’s Issues:	1.  Inequitable – Based on one isolated incident not related to the others.
			2.  Propriety – NJP procedures not followed; not provided JAG.

Decision

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

Date:  20070920  				Location:  Washington D.C. 

Discussion

Issue 1 ():  The Applicant contends that his characterization of service was inequitable because it was based on one isolated incident during his two and a half years of otherwise honorable service.  Despite a servicemember’s prior record of service certain serious offenses warrant separation from the naval service in order to maintain proper order and discipline.  The Applicant’s summary of service clearly documents the Applicants misconduct resulting in three nonjudicial punishments for violations of UCMJ Articles 91 (insubordinate conduct), 92 (failure to obey and order or regulation, 3 specifications), 107 (false official statement) and 134 (drunk and disorderly).  Violations of Articles 91, 92, and 107 constitute the “commission of a serious offense”, which forms the basis for discharge in this case.  Violations of these same articles carry a penalty of up to a dishonorable discharge and up to 5 years of imprisonment for each specification if adjudicated by a court martial.  The Applicant’s conduct which forms the primary basis for determining the characterization of his service reflects the Applicant’s willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade. 

Issue 2 ():  The Applicant contends that his NJP was procedurally flawed and that he was denied JAG representation during the proceedings.  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.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence.  Specifically with regard to an impropriety there is no evidence in the record nor has the Applicant produced any evidence to support his contention of improper NJP procedures.  For the information of the Applicant, according to JAGMAN 5800.7D a Sailor is not entitled to JAG representation during NJP.  To the contrary the record documents that the Applicant was properly processed in accordance with the Naval Military Personnel Manual, (NAVPERS 15560C), Article 1910-142, SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.  Based upon the record, nothing indicates that the Applicant’s discharge was in any way improper. 

. 

Summary of Service

Prior Service:
Inactive: USNR (DEP)	20030507 - 20030728  	Active:   
Period of Service Under Review:
Date of Enlistment: 20030729		Years Contracted:  	Date of Discharge:  20060308
Length of Service:  02 Yrs 07 Mths 10 Dys		Lost Time:  
Education Level:  	Age at Enlistment:  	AFQT:  68	Highest Rank/Rate:  ADAA
Evaluation marks (# of occasions):	Performance:  3.3		Behavior:  3.3	 OTA:  3.34 (3) 
Awards and Decorations (per DD 214):  NATIONAL DEFENSE SERVICE MEDAL, GLOBAL WAR ON TERRORISM SERVICE MEDAL, GLOBAL WAR ON TERRORISM EXPEDITIONARY MEDAL, FLAG LETTER OF COMMENDATION

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

20040128:	CO's NJP -- Viol UCMJ Art. 92 - Failure to obey a lawful order (underage drinking), Art. 134 - Drunk and disorderly.
	Awarded – FOP - $100.00 for 1 month.

20041005:	CO's NJP -- Viol UCMJ Art. 92 - Failure to obey a lawful order, Art. 107 - False official statement.
	Awarded - FOP - $587.00 for 2 months; RIR to E-1; Restr for 60 days.

20041210:	Applicant completed Level II alcohol rehabilitation treatment at Naval Medical Center, San Diego.

20060212:	CO's NJP -- Viol UCMJ Art. 91 - Disrespectful in language and deportment towards a Petty Officer. Art. 92 - Derelict in the performance of those duties.
	Awarded - RIR to E-2; Restr for 30 days.

Discharge Process

Date Notified:					20060222
Reason for Discharge:	 - 
	 - 
Least Favorable Characterization:	

Date Applicant Responded to Notification:		20060222
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			
	Administrative Board			
	GCMCA review				

Separation Authority (date):	COMMANDING OFFICER, TRANSIENT PERSONNEL UNIT PUGET SOUND (20060222)
              Reason for discharge directed:	 - 
              Characterization directed:	
Date Applicant Discharged:	20060308

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)  Letter from United States Senator, Letter from Texas State University, Applicant’s résumé

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 26 April 2005 until Present, Article 1910-142, SEPARATION 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 violations of UCMJ, Articles 91, 92 and 107.

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