ex-SR, USN
ND07-00275

Current Discharge and Applicant’s Request

Application Received:  20070104 	           Characterization Received:  
Narrative Reason:  MISCONDUCT 					Authority:  MILPERSMAN 1910-142

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1. Misled by recruiter
			2. False arrest in Mexico caused subsequent misconduct
			3.  Post-service conduct.

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 1 ().  The Applicant implies that his misconduct was the result of alleged misrepresentations by his recruiter.  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 the recruiter misled him through the recruitment process.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  However, even if the Applicant could show misrepresentations in the recruitment process, such misrepresentations would neither amount to a justification nor to a defense for the Applicant’s own misconduct.

Issue 2 ().  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.  An under other than honorable conditions discharge is warranted when a servicembers behavior constitutes a significant departure from naval standards.  There is credible evidence in the record that the Applicant committed significant misconduct during his period of service.  The Applicant’s service was marred by 2 summary courts-martial for various violations of Articles 81, 86, 89, 92 and 134 of the UCMJ.  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 3 ().  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 the service.  The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was found not to mitigate the conduct which precipitated the discharge.

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)	20000314 - 20000405  		Active:   
Period of Service Under Review:
Date of Enlistment: 20000406		Years Contracted:  	Date of Discharge:  20010724
Length of Service:  01  Yrs  03  Mths  14  Dys	Lost Time:  20 days Days UA/Confined:  UNABLE TO DETERMINE
Education Level:  	Age at Enlistment:  	AFQT:  NOT FOUND IN RECORD	Highest Rank/Rate:  SN
Evaluation marks (# of occasions):	Performance:  2.0(1)	Behavior:  1.0(1)	 OTA:  1.50 
Awards and Decorations (per DD 214):  NONE

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

20010118:	SCM -- Viol UCMJ Art. 81 - Conspiracy, Art. 89 - Disrespect to superior commissioned officer, Art. 92 - Disobey order from law enforcement personnel, Art. 134 (3 specs) - Drunk and disorderly, wrongful use of a military ID card, and solicit another to commit an offense.
	Awarded -  RIR (E-1); Confinement (30 days).

20010605:	SCM -- Viol UCMJ Art.86 - Unauthorized absence from 20010329 to 20010417 (20 days), Art. 92 (2 specs) - (1) Fail to obey order by MAC D_, (2) Fail to obey order by CO (not to speak with witnesses during investigation), Art. 134 - Wrongfully communicate to SR G_ a threat to "bust his ass".
	Awarded -  FOP ($690.00); Confinement (30 days).  CA action on 20010613 approved and ordered executed.

Discharge Process

Date Notified:					20010611
Reason for Discharge:	 - 
Least Favorable Characterization:	

Date Applicant Responded to Notification:		20010611
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			
	Administrative Board			

Commanding Officer Recommendation (date):	 (20010718)
Separation Authority (date):	COMMANDER, NAVY REGION NORTHWEST (20010719)
              Reason for discharge directed:	 - 
              Characterization directed:	
Date Applicant Discharged:	20010724

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)  Copy of driver's license and social security card

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 31, dated 20 Feb 01, effective 25 January 2001 until 
21 August 2002, 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 violation of the UCMJ, Articles 89, Disrespect toward superior commissioned officer; 92, Failure to obey order or regulation; 134, Drunk and disorderly; 134, False or unauthorized pass offenses; and 134, Threat, communicating.

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