ex-SA, USN
ND07-00284

Current Discharge and Applicant’s Request

Application Received:  20070105 			Characterization Received:  
Narrative Reason:  MISCONDUCT - PATTERN OF MISCONDUCT 		Authority:  MILPERSMAN 3630600

Applicant’s Request:	Characterization change to:  
			Narrative Reason change:  

Applicant’s Issues:	1.  Youth and immaturity.
			2.  Post Service Conduct – character reference letter and employed. 

Decision

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  MISCONDUCT - PATTERN OF MISCONDUCT.

Date:  20080306 				Location:  Washington D.C.

Discussion

Issue 1 ():  The Applicant contends that his misconduct was the result of his youth and immaturity at the time of his service.  The record shows that the Applicant enlisted at age 19.  The majority of first term enlistments are youth aging 18 – 19 years old.  It must be noted that most of these Sailors serve honorably and therefore earn honorable discharges.  The Applicant’s service was marred by a retention warning, three nonjudicial punishments for violations of UCMJ Articles 86 (14 specifications) and 134 (communicating a threat), and a Summary Court Martial for violations of UCMJ Articles 86 (unauthorized absence) and 87 (missing movement).  These nonjudicial punishments and Summary Court Martial form the basis for the Applicants administrative discharge based on a pattern of misconduct which is defined as two or more punishments during the same enlistment.  The Applicant was notified of his impending discharge and his rights.  Wherein he chose to consult counsel and be heard before an Administrative discharge board.  The Administrative discharge board voted unanimously that the Applicant had committed misconduct by the commission of a serious offense and by a pattern of misconduct.  They also voted unanimously that the conduct warranted separation.  By a vote of 2-1 the Administrative Board voted that the characterization of service should be under other than honorable conditions.  After assuring compliance with MILPERSMAN 1910-140 the separation authority directed the Applicant’s discharge by reason of misconduct due to a pattern of misconduct with a service characterization of under other than honorable conditions.  Nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy.  An under other than honorable conditions characterization of service 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.  For the information of the Applicant, violations of UCMJ Articles 86 (unauthorized absence in excess of 30 days) and 87 (missing movement) carry a penalty of a dishonorable discharge and up to two years of imprisonment for each specification if adjudicated by a court martial.  The Applicant’s conduct 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 in his characterization of service. 

Issue 2 ():  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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 the civilian life subsequent to leaving the service.  Normally, to permit relief a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct 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, is considered.  The Applicant provided reference letter and a workplace evaluation as documentation of his post-service accomplishments.  The Applicant's efforts need to be more encompassing than those provided.  For example, the Applicant could have produced evidence of continuing educational pursuits, documentation of community service, and certification of non-involvement with civil authorities.  The Board determined that the documentation provided by the Applicant did not mitigate the misconduct which resulted in the Applicant’s discharge and characterization of his service.  

In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence (to include evidence submitted by the Applicant) to rebut the presumption.  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 noted administrative errors on the original DD Form 214:

	  “UNDER OTHER THAN HONORABLE CONDITIONS”
	  “TL:  920714 TO 920721, 920628 TO 920701, 900910 TO 901210”

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)	19881227 - 19890108  
Period of Service Under Review:
Date of Enlistment: 19890109		Years Contracted:  	Date of Discharge:  19930324
Length of Service:  04 Yrs 02 Mths 16 Dys		Lost Time:  Days UA:  103  	Days Confined:  12
Education Level:  	Age at Enlistment:  	AFQT:  23/26	Highest Rank/Rate:  AN
Evaluation marks (# of occasions):	Performance:  3.3 (4)	Behavior:  3.1 (4)	 	`OTA:  3.30 (4)
Awards and Decorations (per DD 214):  NATIONAL DEFENSE SERVICE MEDAL

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

19890601:	Applicant reported for duty aboard PCU ABRAHAM LINCOLN (CVN 73).

19891127:	Applicant to unauthorized absence from 0700 until 0800.

19891227:	Applicant to unauthorized absence at 0700.

19900103:	Applicant from unauthorized absence at 1735 (surrendered, 6 days).

19900118:	Applicant to unauthorized absence from 0700 until 0900.

19900105:	Applicant to unauthorized absence from 0700 until 0730.

19900613:	Applicant to unauthorized absence from 0625 until 0956.

19900708:	Applicant to unauthorized absence 0700 until 0640 19900709.

19900709:	Applicant to unauthorized absence from 0900 until 0530 on 19900710.

19900710:	NJP – Violation of UCMJ Article 86 (unauthorized absence, 3 specs).
	Awarded - RIR (E-1, suspended for 6 months); Restr (14 days); Extra duties (14 days). 

19900710:	Retention Warning for your violation of UCMJ, Article 86

19900910:	Applicant to unauthorized absence at 0700 from USS ABRAHAM LINCOLN (CVN 73), Newport News, VA.

19900925:	Applicant missed movement (homeport change east to west coast).

19901010:	Applicant declared a deserter.

19901210:	Applicant from unauthorized absence at 1445, surrendered in Tampa Fl (89 days).

19910115:	Summary Court Martial – Violations of UCMJ Articles 86 (unauthorized absence) and Article 87 (missing movement through design).
	Awarded - FOP ($231.30/month for 1 month); RIR (E-1); Confinement (14 days).  CA Action:  19910124 Approved findings and ordered executed.

19910115:	Applicant to confinement.

19910126:	Applicant from confinement.

19920628:	Applicant to unauthorized absence.

19920701:	Applicant from unauthorized absence (2 days).

19920714:	Applicant to unauthorized absence.

19920721:	Applicant from unauthorized absence (6 days).

19920723:	Applicant to unauthorized absence from 0700 until 1845.

19920807:	NJP – Violation UCMJ Article 86 (unauthorized absence, 3 specifications).
	Awarded - FOP ($440.00/ month for 1 month, suspended for 6 months); RIR (E-1, suspended for 6 months); Restr for (7 days); Extra duties (7 days).

19921003:	Applicant to unauthorized absence.

19921005:	Applicant from unauthorized absence (1 day).

19921117:	Applicant unauthorized absent from place of duty.

19921128:	Applicant to unauthorized absence.

19921129:	Applicant from unauthorized absence.

19921210:	Vacate FOP and RIR awarded at NJP 19920807.

19921210:	NJP – Violation of UCMJ Article 86 (unauthorized absence, 3 specifications) and Article 134 (communication of a threat).
	Awarded - FOP ($392.00 /month for 1 month), RIR (E-1).

Discharge Process

Date Notified:					19921211
Reason for Discharge:	 - 
	 - 
Least Favorable Characterization:	

Date Applicant Responded to Notification:		19921211
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			
	Administrative Board			
	GCMCA review				

Administrative Board Date:	19930116
      	Findings, by preponderance of the evidence:  
	  -  - .
	
	  -  - .
	  - SEPARATION WARRANTED.
              Recommendation on Separation: 	  - 
              Recommendation on Characterization:	

Commanding Officer Recommendation (date):	 (19930219)
Separation Authority (date):	BUPERS (19930310)
              Reason for discharge directed:	 - 
              Characterization directed:	
Date Applicant Discharged:	19930324

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 5, effective 5 March 1993 until 21 July 1994), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - A 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 violations of the UCMJ, Articles 87 and 134.

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