ex-CTI2, USN
ND07-00229

Current Discharge and Applicant’s Request

Application Received:  20061213	Characterization Received:  
Narrative Reason:  MISCONDUCT Authority:  MILPERSMAN 1910-142

Applicant’s Request:	Characterization change to:    
			Narrative Reason change to: 
Applicant’s Issues:	1. Discharge based on a single event.
			2. Command trumped charges on Applicant for reduction in rank.
			3. No disciplinary review board given.
			4. Discharge too severe for service record.

Decision

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

Date:  20070927  Location: 	 Washington D.C.  The Board found that 
 
Discussion

Issue 1: ().  The Applicant contends his discharge was based on one single event.  The Applicant’s record clearly documents three nonjudicial punishments for violations of the Uniformed Code of Military Justice (UCMJ) Article 86 [Absent without leave (3 specs)], Article 92 (Failure to Obey Lawful Order) and Article 132 [Fraud against the United States (3 specs)] during his enlistment contract.  Articles 92 and 132 are considered serious offenses for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial.  An upgrade to honorable would be inappropriate.  

Issue 2: ().  The Applicant contends that the command trumped up charges against him in order to be able to reduce him in rank.  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 his issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was wrongfully charged and disciplined. An upgrade to honorable would be inappropriate. 

Issue 3: ().  The Applicant contends he did not receive a disciplinary review board.  Commands are not required to establish a disciplinary review board.  Additionally, convening of a disciplinary review board prior to NJP proceedings is not a prerequisite in the procedural requirements for NJP (MCM, V-8).  

Issue 4: ().  The Board reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis.  If such a review reveals an impropriety or inequity, relief is in order.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service.  There is credible evidence in the record that the Applicant had several disciplinary infractions.  Additionally, the Applicant’s Evaluation Report and Counseling Records in his final two years of service reflect that the Applicant did not meet Navy standards for conduct.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  A 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.  Certain serious offenses, even though isolated, warrant separation from the Naval service in order to maintain proper order and discipline. The Applicant’s service was marred by three nonjudicial punishments for violations of the Uniformed Code of Military Justice (UCMJ) Article 86 [Absent without leave (3 specs)], Article 92 (Failure to Obey Lawful Order) and Article 132 [Fraud against the United States (3 specs)] during his enlistment contract.  Articles 92 and 132 are considered serious offenses for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial.  An upgrade to honorable would be inappropriate.  

 Summary of Service

Prior Service:
Inactive: USNR (DEP)	19871110 - 19880125  		
Active:   USN		19880126 - 19921130  
Active:   USN		19921201 - 19971113  HON

Period of Service Under Review:
Date of Enlistment: 19971114	Years Contracted:  ; Extension:  13 MONTHS	Date of Discharge:  20020710
Length of Service:  04  Yrs  07  Mths  26  Dys	Lost Time:  Days UA:    Days Confined:  
Education Level:  	Age at Enlistment:  	AFQT:  84	Highest Rank/Rate:  CTI1
Evaluation marks (# of occasions):	Performance:  3.2(5)	Behavior:  2.6(5)	 OTA:  2.5 
Awards and Decorations (per DD 214):  NAVY AND MARINE CORPS COMMENDATION MEDAL, NAVY AND MARINE CORPS ACHIEVEMENT MEDAL (3), COMBAT ACTION RIBBON, JOINT MERITORIOUS UNIT AWARD (2), NAVY UNIT COMMENDATION (5), MERITORIOUS UNIT COMMENDATION (7), NAVY "E" RIBBON (3), THIRD GOOD CONDUCT AWARD (FOR PERIOD ENDING 19990117), NATIONAL DEFENSE SERVICE MEDAL (2), ARMED FORCES EXPEDITIONARY MEDAL, SOUTHWEST ASIA SERVICE MEDAL (3), HUMANITARIAN SERVICE MEDAL, ARMED FORCES SERVICE MEDAL, SEA SERVICE DEPLOYMENT RIBBON (6), KUWAIT LIBERATION MEDAL (SAUDI ARABIA), KUWAIT LIBERATION MEDAL (KUWAIT), NAVY MARKSMAN PISTOL SHOT, ENLISTED SURFACE WARFARE SPECIALIST INSIGNIA, ENLISTED AVIATION WARFARE SPECIALIST INSIGNIA, NAVAL AIRCREWMAN MASTER TRAINING SPECIALIST, AIRFORCE OUTSTANDING UNIT AWARD   

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

19971114:	Reenlisted this date for a term of 4 years.

19990910:	Awarded NJP for viol UCMJ Art. 86 [Extracted from Evaluation Report & Counseling Record dtd 19981116].

20010813:	Awarded NJP for viol UCMJ Art. 86: Absence without leave.  Not recommended for advancement or retention [Extracted from Evaluation Report  & Counseling Record dtd 20001103].

20020321:	CO's NJP -- Viol UCMJ Art. 132 – (3 specs), Fraud against the United States; Spec 1: Use a written statement that $2700.00 worth of rent expenses were incurred, did not have rental expenses; Spec 2: Use a written statement that $2700.00 worth of rent expenses were incurred, incurred $1,100.00 worth of rental expenses; Spec 3: Use a written statement that $2700.00 worth of rent expenses were incurred, incurred $1,100.00 worth of rental expenses; Spec 4: Use a written statement that $2700.00 worth of rent expenses were incurred, incurred $1,100.00 worth of rental expenses; viol UCMJ Art. 92: Failure to obey lawful order by wrongfully driving on Fort Gordon with a suspended driving privileges; viol UCMJ Art. 86 – Unauthorized absence 0730-1100, 20020321.  Awarded - RIR (E-5); Restr for (60days).

Discharge Process

Date Notified:					20020521
Reason for Discharge:	 - 
	
Least Favorable Characterization:	

Date Applicant Responded to Notification:		20020521
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			  
	Administrative Board			
	GCMCA review				

Commanding Officer Recommendation (date):	N/A (LOCAL SEPARATION)
Separation Authority (date):	COMMANDING OFFICER, NAVAL SECURITY GROUP ACTIVITY, FORT GORDON (20020605)
              Reason for discharge directed:	 - 
              Characterization directed:	
Date Applicant Discharged:	20020710

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), Change 31, dated 20 Feb 01, effective 25 Jan 01 until 21 Aug 02, Article 1910-142  [formerly 3630605]. 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 violation of the UCMJ, Articles 92 and 132.

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