ex-HM3, USN
ND07-00246

Current Discharge and Applicant’s Request

Application Received:  20061220 		Characterization Received:  
Narrative Reason:  MISCONDUCT 					Authority:  MILPERSMAN 1910-142

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: MISCELLANEOUS
Applicant’s Issues:	1.  Desire GI Bill
			2.  Enhance employment opportunities
			3.  Did not commit misconduct
			4.  Command did not attempt rehabilitation

Decision

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

Date:  20071002  				         		        Location:  Washington D.C. 	

Discussion

Issue(s) 1 - 2:   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 3 ().  There is credible evidence in the record, supported by the Applicant’s own supporting documents, of substantiated physical abuse by the Applicant toward his spouse.  Such conduct constitutes a serious offense for which a punitive discharge is authorized upon conviction at special or general court-martial.  

Issue 4 ().  There is credible evidence in the record, supported by the Applicant’s own supporting documents, that the Applicant was afforded available rehabilitation treatment.  That such treatment may not have been effective in preventing further acts of violence by the Applicant towards his spouse does not mean that the command did not attempt to help the Applicant with his problem.  Nothing in the record indicates that the Applicant was not responsible for his own actions or was improperly or inequitably held accountable.

Issue 5 (Propriety).  While not raised by the Applicant, the Board noted that the Applicant was notified of Family Advocacy Program (FAP) Rehabilitation Failure as the reason for discharge, yet discharged for Misconduct due to commission of a serious offense.  Further, the Applicant’s enlistment was extended on his EAS subsequent to his being notified of administrative separation but prior to the separation authority decision to discharge him. The Board noted that it was possible, in light of the time between notification and separation authority action, that additional misconduct identified subsequent to the notification and prior to his EAS, but not reflected in the record, was properly addressed by competent authority.  The Board presumed that the Applicant’s extension of his enlistment was proper, and that if any procedural error occurred in the discharge process, the Applicant was not prejudiced as a result.

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that 

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

	  “MISCONDUCT (SERIOUS OFFENSE)”

The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate. 

Summary of Service

Prior Service:
Inactive: USNR (DEP)	20010927 - 20011015  		Active:   	
Period of Service Under Review:
Date of Enlistment: 20011016	Years Contracted:  ; Extension:    	Date of Discharge:  20051202
Length of Service:  04  Yrs  01  Mths  17  Dys	Lost Time:  Days UA:    Days Confined:  
Education Level:  	Age at Enlistment:  	AFQT:  53	Highest Rank/Rate:  HM3
Evaluation marks (# of occasions):	Performance:  4.3(4)	Behavior:  2.8(4)	 OTA:  3.47 
Awards and Decorations (per DD 214):  NATIONAL DEFENSE SERVICE MEDAL, GLOBAL WAR ON TERRORISM SERVICE MEDAL, GLOBAL WAR ON TERRORISM EXPEDITIONARY MEDAL, NAVY GOOD CONDUCT MEDAL, SEA SERVICE DEPLOYMENT RIBBON, ENLISTED AVIATION WARFARE SPECIALIST

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

20050803:	Applicant referred to Counseling Services Program due to an alleged incident of physical spouse abuse on 20050704.  Case Review Committee determined the incident was substantiated and Applicant was assigned Matrix Level III (Treatment Failure).

20050805:	Medical Record:  Reason for visit:  Resubmission of consult for family therapy at NHTP; Applicant’s wife is active duty and cannot be seen in town.
	(Initial consult rejected and administratively closed 20050619.  
	[Extracted from Applicant’s supporting documents]

20051016:	Applicant extended for 31 months [extracted from History of Assignments].

Discharge Process

Date Notified:					20050804
Reason for Discharge:	FAILURE
Least Favorable Characterization:	

Date Applicant Responded to Notification:		20050809
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			 (NDRB note:  NONE FOUND IN RECORD)
	Administrative Board			
	GCMCA review				

Commanding Officer Recommendation (date):	NOT FOUND IN RECORD
Separation Authority (date):	COMNAVPERSCOM (20051122)
              Reason for discharge directed:	 - 
              Characterization directed:	
Date Applicant Discharged:	20051202

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)  Statement from Applicant’s spouse

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.

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