ex-MSSR, USN
ND07-00338

Current Discharge and Applicant’s Request

Application Received:  20070125 	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. VA Benefits
			2. Immature during Service
			3. Service Record 
4. Post Service

Decision

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

Date:  20071011  					Location:  Washington D.C. 	

Discussion

Issue 1:   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 2: ().  The Applicant contends that his problems are attributed to his immaturity.  While he may feel that this was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  There is credible evidence in the record that the Applicant established a pattern of misconduct.  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. 

Issue 3: ().  When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  A general (under 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.  The Applicant’s service was marred by the award of two retention warnings, three nonjudicial punishments (NJP) for violations of the Uniform Code of Military Justice (UCMJ) Article 86 (Unauthorized Absence) and Article 107 (False Official Statement), and a Summary Court Martial for Article 86 and Article 92 (Failure to Obey).  Violations of UCMJ Articles 92 and 107 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 4: ().  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, good conduct, or favorable endorsements 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 only his statement.  The Applicant's efforts need to be more encompassing.  For example, the Applicant could have produced evidence of a verifiable and continuous employment record, documentation of educational pursuits and any documentation of community service.  The Board determined that the documentation provided by the Applicant did not mitigate the circumstances that resulted in the characterization of 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 

Administrative Corrections to the Applicant’s DD 214

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

	  “14OCT94-25OCT94, 29JUL98-02AUG98, 12JUL99-15JUL99, ”
	
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)	19930319         		Active:   	
Period of Service Under Review:
Date of Enlistment: 19930920	Years Contracted:  ; Extension:    	Date of Discharge:  19991001
Length of Service:  05  Yrs  11  Mths  29  Dys  Lost Time:  Days UA:  18  Days Confined:  
Education Level:  12	Age at Enlistment:  22	AFQT:  UNKNOWN	Highest Rank/Rate:  MSSN
Evaluation marks (# of occasions):	Performance:  3.0(7)	Behavior:  3.06(7)	 OTA:  
Awards and Decorations (per DD 214):  NATIONAL DEFENSE SRVICE MEDAL; SOUTHWEST ASIA SERVICE MEDAL; SEA SERVICE DEPLOYMENT RIBBON (2); ARMED FORCES EXPEDITIONARY MEDAL; MERITORIOUS UNIT COMMENDATION; FLAG LETTER OF COMMENDATION (2).

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

19941015	Applicant to unauthorized absence this date.

19941025:	Applicant from unauthorized absence this date (10 days/surrendered).

19941127:	NJP -- Viol UCMJ Art. 86 – Unauthorized absence
	Awarded - FOP $150 for 1 months (suspended for 6 months); Restr for (15 days); and Extra duties (15 days).

19941127:	Retention Warning for Violation of UCMJ Art 86.

19970427	Applicant to unauthorized absence from 0645 to 1300 this date. (6 hrs)

19971015	Applicant to unauthorized absence at 0700 this date.

19971016:	Applicant from unauthorized absence at 0600 this date. (23 hrs)

19980310	Applicant unauthorized absence from 0630 to 1330 this date. (7 hrs)

19980404	Applicant unauthorized absence from 0600 to 1000 this date. (4 hrs)

19980422	Applicant unauthorized absence from 0600 to 0800 this date. (2 hrs)

19980723	Applicant to unauthorized absence at 0645 this date.

19980724:	Applicant from unauthorized absence at 0645 this date (24 hours/surrendered)

19980728	Applicant to unauthorized absence.

19980802:	Applicant from unauthorized absence this date (4 days/surrendered).

19990121:	NJP -- Viol UCMJ Art. 86 – Unauthorized absence (4 spec) and Art 107-- False official statement (2 specs) 
	Awarded - FOP $537 for 1 month; RIR to E-2; Restr for (30 days); and Extra duties (30 days).

19990125:	Retention Warning for NJP of 19990121 for Art 86 (4 specs and Art 107 (2 specs).

19990222:	Applicant receives Adverse Performance Evaluation Report.

19990503:	Medical Record:  Reason for visit:  Mental Health Consultation.
	Diagnosis:  Axis I:  Major Depressive Disorder
	Axis II:  Deferred
	Axis III:  No DX
	Axis IV:  Occupational Problems
	Axis V:  41-50
	Plan:  1) Prozac
	2) Mind our ____ Mon 1300-1430 beginning 17 May
	3) Follow up 17 May  1500
	4) Fit for duty

19990511:	NJP -- Viol UCMJ Art. 86 – Unauthorized absence ( 3 specs) and Art 107 -- False official statement (2 specs)
	Awarded - FOP $479 for 2 months (1 month suspended for 3 months); RIR to E-1; Restr for (30 days); and Extra duties (30 days).

19990623:	Applicant unauthorized absence from 0430 to 2300 this date. (14 hrs)

19990627:	Applicant unauthorized absence from 0600 to 0800 this date. (2 hrs)

19990627:	Applicant unauthorized absence from 0830 to 1130 this date. (3 hrs)

19990628:	Applicant unauthorized absence from 0430 to 0455 this date.

19990628:	Applicant unauthorized absence from 0530 to 1600 this date. (10 hrs)

19990711:	Applicant unauthorized absence from 0530 to 1600 this date. (10 hrs)

19990711:	Applicant to unauthorized absence at 1700 this date.

19990715:	Applicant from unauthorized absence at 2119 this date (4 days/surrendered).

19990725:	Retention Warning for Art 86 and Art 92.

19990726:	SCM -- Viol UCMJ Art. 86 – (Unauthorized absence) and Art 92 (Failure to obey).
	Awarded -  FOP $640 for one month and Confinement for 30days.
	CA action 990716

19990920:	Applicant offered Level III treatment prior to separation but declined

19990920:	Applicant acknowledges surrender of outer garments upon discharge.  Acknowledged he will be discharged for one of the following to include Pattern of Misconduct.

19991001:	Applicant Discharged

19991005:	DD215 issued to change reason for discharge to Pattern of Misconduct, change separation code to HKA, and changes date of discharge to 19990920.

Discharge Process

Date Notified:					
Reason for Discharge:				
Least Favorable Characterization:	
Date Applicant Responded to Notification:		

Date Applicant Discharged:	19991001

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 29 March 2000, Article 1910-140, SEPARATION BY REASON OF 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 violation of the UCMJ, Articles 92 and 107.

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