ex-FCSR, USN
ND07-00273

Current Discharge and Applicant’s Request

Application Received:  20070110 	Characterization Received:  
Narrative Reason:  PATTERN OF MISCONDUCT 				Authority:  MILPERSMAN 1910-140

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1. Characterization not warranted by minor misconduct
			2. Denied opportunity to consult with counsel or demand trial in lieu of NJP
			3. Not afforded alcohol rehabilitation treatment

Decision

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

Date:  20071002	    	Location:  Washington D.C.	Representative:  Civilian Counsel

Discussion

Issue 1 ().  An under other than honorable conditions discharge is warranted when a servicember’s performance or conduct constitutes a significant departure from standards expected of naval members.  The Applicant’s service was marred by a retention warning for cheating, 3 nonjudicial punishment proceedings for violations of Articles 86 and 128, and a civil conviction for vandalism.  The Applicant’s conduct, which forms the primary basis for determining the character 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 of his characterization of service.  

Issue 2 ().  Based on the service record, the Board concluded that the Applicant referred to the rights associated with his NJP of 20010208.  The Board noted that the Applicant, when advised of self-incrimination rights, invoked his right to counsel; and that, when advised of his NJP rights, indicated an intention to refuse NJP but also, somewhat ambiguously, requested a personal appearance before the commanding officer at NJP.  In regard to his invoking counsel, the Board found no evidence that the Applicant’s self-incrimination rights were violated.  In regards to the NJP itself, the Board could not determine whether or not the Applicant clearly communicated his intent to refuse NJP.  The Board did conclude however, that even if the Applicant had been the subject of NJP in error, he was not prejudiced thereby in regards to his discharge.  The record clearly indicates that the Applicant was afforded his NJP appeal rights, but did not take that opportunity to challenge the NJP.  The Applicant was properly notified of the proposed administrative separation, but did not take that opportunity to challenge the NJP.  Further, and most importantly, the Board determined that, even without consideration of that NJP, the Applicant had demonstrated a pattern of misconduct for which separation was appropriate.

Issue 3 ().  The Applicant does not indicate the extent to which his asserted untreated alcohol problem contributed to his discharge, nor provide any evidence to support his claim.  The Board found that this issue was directly contradicted by the Applicant’s own statement, indicated on his separation physical, that he did not use alcohol.   

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 

Summary of Service

Prior Service:
Inactive: USNR (DEP)	19980930 - 19990613  		Active:   	
Period of Service Under Review:
Date of Enlistment: 19990614	Years Contracted:  ; Extension:    	Date of Discharge:  20010309
Length of Service:  01  Yrs  08  Mths  26  Dys	Lost Time:  Days UA:    Days IHCA/Confined:  4
Education Level:  	Age at Enlistment:  	AFQT:  65	Highest Rank/Rate:  FCSN
Evaluation marks (# of occasions):	Performance:  NOB(2)	Behavior:  1.0(2)	 OTA:  1.00 
Awards and Decorations (per DD 214):  NONE

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

19991028:	Retention Warning for violation of UCMJ Article 92: Cheating.

20000802:	Applicant apprehended by civilian authorities 1300.

20000802:	Civil Conviction:  San Diego Superior Court, South County Division for violation of vandalism.
	Sentence:  Jail for 4 days, fine $260.00 and summary probation for 3 years.

20000806:	Applicant released from civil confinement 0700 (4 days).

20000810:	CO's NJP -- Viol UCMJ Art. 86 - Unauthorized absence; Art. 128 - Strike FCSN S_ on face with fist.
	Awarded - FOP ($200.00) for (2 months); RIR (E-2); Restr for (30 days); Extra duties (30 days).

20010118:	CO's NJP -- Viol UCMJ Art. 86 - Fail to go to appointed place of duty on 20001215.
	Awarded - FOP ($250.00) for (1 month); RIR (E-1, susp 3 months); Restr/Extra duties for (18 days).  

20010201:	RIR suspended on 20010118 vacated this date.

20010208:	CO's NJP -- Viol UCMJ Art. 86 - Fail to go to restriction muster, 0700, 20010203.
	Awarded - FOP ($500.00) for (1 month); Restr for (30 days); Extra duties (30 days).

Discharge Process

Date Notified:					20010222
Reason for Discharge:	 - PATTERN OF MISCONDUCT
	 - 
	 - 
Least Favorable Characterization:	

Date Applicant Responded to Notification:		20010222
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			
	Administrative Board			

Commanding Officer Recommendation (date):	 (20010223)
Separation Authority (date):	COMMANDER, NAVY REGION SOUTHWEST (20010301)
              Reason for discharge directed:	 - 
              Characterization directed:	
Date Applicant Discharged:	20010309

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 18, effective 12 December 1997 until 21 August 2002, 
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.

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