ex-SN, USN
ND07-00226

Current Discharge and Applicant’s Request

Application Received:  20061215	Characterization Received:  
Narrative Reason:  MISCONDUCT DUE TO A PATTERN OF MISCONDUCT Authority:  MILPERSMAN 1910-140

Applicant’s Request:	Characterization change to:    
			Narrative Reason change: 
Applicant’s Issues:	1.  Reenlistment
			2.  Discharge was not associated with UCMJ actions or charges of military offenses.
			3.  Discharged as a result of former husband’s false allegations of domestic violence and subsequent 			police involvement.   

Decision

By a vote of  the Characterization shall  .	
By a vote of  the Narrative Reason shall  SECRETARIAL AUTHORITY. 

Date:  20070927  				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 ():  For the information of the Applicant, an administrative discharge is not punishment and need not be associated with NJP nor Courts Martial.  The characterization of service is a description of the quality of the total service provided by the member during that enlistment.  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.  A General (under 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 a retention warning and nonjudicial punishment for violations of UCMJ Articles 86 (unauthorized absence) and 92 (failure to obey and order).  The Applicant’s conduct which forms the primary basis for determining the characterization of service reflects her willful failure to meet the requirements of her contract with the U.S. Navy and falls far short of that required for an upgrade to the characterization of her service. 

Issue 3 ():  In the Applicant’s letter to the Board she contends that her discharge is the result of her former husband’s false allegations of domestic violence and subsequent police involvement.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support her claim.  There is no evidence in the record, nor has the Applicant produced any evidence, to support her contention.  However, even if the Applicant could document her claims this would neither amount to a justification nor to a defense for the Applicant’s own misconduct.  The record clearly reflects her misconduct which demonstrated she was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for her conduct or that she should not be held accountable for her actions.

To be administratively discharged via MILPERSMAN 1910-140 (Pattern of Misconduct) a member must have first received two or more non-judicial punishments, court-martial, or civil convictions (or combination thereof) and violate a NAVPERS 1070/613 (Retention Warning).  The record documented the Applicant’s first NJP and subsequent retention warning violation.  However, there is neither documentation nor evidence to lead the board to believe that the Applicant ever received a second NJP.  To the contrary the CO’s letter dated February 2004 specifically lists only one NJP and cites the reason for processing as a pattern of abuse evidenced by domestic violence.  Therefore, the Applicant does not meet the criteria for the narrative reason assigned.  The Board voted 5-0 that the narrative reason shall change to “SECRETARIAL AUTHORITY”.  Relief granted.

 Summary of Service

Prior Service:
Inactive: USNR (DEP)	20020430 - 20020609  		Active:   	
Period of Service Under Review:
Date of Enlistment: 20020610	Years Contracted:  ; Extension:    	Date of Discharge:  20031027
Length of Service:  01 Yrs 04 Mths 18 Dys		Lost Time:  
Education Level:  	Age at Enlistment:  	AFQT:  65	Highest Rank/Rate:  SN
Evaluation marks (# of occasions):	Performance:  NOB	Behavior:  1.0	 OTA:  1.0 (1) 
Awards and Decorations (per DD 214):  NATIONAL DEFENSE SERVIEC MEDAL

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

20020817:	Applicant reported to Naval Technical Training Center, Detachment, Monterey, CA.

20021114:	Military Police Report – Domestic (Verbal), (2108)

20021224:	Military Police Report – Domestic (Verbal)

20030111:	Military Police Report – No charges (1726)

20030116:	Military Police Report – Health and welfare check

20030122:	Applicant unauthorized absent from 0800-1300.

20030123:	Applicant unauthorized absent from 1100-1400.

20030130:	Military Police Report – Domestic (verbal)

20030213:	CO's NJP -- Viol UCMJ Art. 86 (2 specs) - Absence without leave (20020122 from 0800 until 1300 and 20020123 from 1100 until 1400); Viol UCMJ Art. 92 – Failure to obey order or regulation (contact Chain of Command after missing muster).  Awarded - RIR to E-1 (suspended for 6 months); Restr for 10 days; Extra duties for 10 days.

20030213:	Retention Warning (OIC’s mast held at Defense Language Institute Monterey, California).

20030328:	Military Police Report – Sexual violence (2300)

20030804:	Applicant notified by OIC NTTC Det., Monterey of her intended administrative discharge due misconduct 			specifically a pattern of misconduct.

20030812:	Following consultation with counsel Applicant acknowledged her recommendation for administrative 			discharge and elected to submit a statement and obtain copies.

20030913:	Commanding Officer, Center for Cryptology, Corry Station, Pensacola directs Applicant’s discharge as 			general under honorable conditions as a result of misconduct due to a pattern of misconduct.

20040206:	Commanding Officer, Center for Cryptology, Corry Station, Pensacola informs Commander, Naval Personnel of the Applicant’s discharge.  “Seaman Apprentice P_ (Applicant) reported to Center for Cryptology Detachment, Monterey as a student on 17 August 2002.  She appeared at OIC’s Mast on 13 February 2003 for violations of UCMJ articles 86 and 92.  On 27 March 2003, Seaman Apprentice P_ and her husband were involved in another domestic violence issue.  Her actions represent a pattern of abuse not amenable to significant change through available services and demonstrate high risk for continued domestic violence in current and future relationships.  Therefore, she was processed for misconduct due to a pattern of misconduct.”

Discharge Process

Date Notified:					20030804
Reason for Discharge:	 - 
	
Least Favorable Characterization:	

Date Applicant Responded to Notification:		20030812
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			
	Administrative Board			
	GCMCA review				

Separation Authority (date):	COMMANDING OFFICER, CENTER OF CRYPTLOGY, CORRY STATION, PENSACOLA (20030909)
              Reason for discharge directed:	 - 
              Characterization directed:	
Date Applicant Discharged:	20031027

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)  Recruitment Data Report, RE Code Waiver Response, Military Police Report Summary, Military Police Reports, Divorce Decree, Restraining Order

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 25 January 2004, 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 92.

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