ex-ENFN, USN
ND07-00346

Current Discharge and Applicant’s Request

Application Received:  20070124	Characterization Received:  
Narrative Reason:  MISCONDUCT Authority:  MILPERSMAN 1910-142

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: MEDICAL DISABILITY
Applicant’s Issues:	1. Unfairly treated by the command leadership and members of the command
			2. Served honorably and therefore his Narrative Reason should not read Misconduct but changed to medical disability based on injuries received on 20050823 

Decision

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

Date:  20071115          Location:  Washington D.C	 Representation:  

Discussion

Issue 1: ().  The Applicant contends that he was unfairly treated by the command leadership and members of the command.  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 he was wrongfully charged and disciplined.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.

Issue 2: ().  The Applicant contends that he served honorably and therefore his Narrative Reason should not read Misconduct but should read medical disability based on injuries received on 20050823.  The Board found no medical diagnosis or recommendation by competent medical authority that could have resulted in discharge proceedings based on medical reasons.  Therefore, medical issues did not preclude the Applicant from completing his service contract.  The Board considered the Applicant’s total service record.   The Applicant’s total service was marred by the award of two retention warnings and four nonjudicial punishments (NJP) for violations of the Uniform Code of Military Justice (UCMJ) Article 86 (Unauthorized absence), Article 89 (Failure to obey a lawful order), Article 91 (Insubordinate conduct toward warrant officer, non commissioned officer or petty officer), Article 92 (Failure to obey a lawful order), Article 117 (Provoking speeches and gestures), and Article 134 (Unlawfully entry and Threat Communication).  Violations of UCMJ Articles 91, 92 and 134 are considered serious offenses for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial.  The portion of the Applicant’s service record prior to the injuries that occurred on 20050823 was marred by one retention warning and two nonjudicial punishments (NJP) for violations of the Uniform Code of Military Justice (UCMJ) Article 91 (Insubordinate conduct toward warrant officer, non commissioned officer or petty officer) and Article 134 (Unlawfully entry).  Violations of UCMJ Articles 91and 134 are considered serious offenses for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial.  The Board determined that an upgrade to honorable would be inappropriate and also determined that the narrative reason was appropriate.

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)	20030709 - 20040307  		Active:   	
Period of Service Under Review:
Date of Enlistment: 20040308		Years Contracted:  ; Extension:    	Date of Discharge:  20051005
Length of Service:  01  Yrs  06  Mths  28  Dys	Lost Time:  Days UA:    Days Confined:  
Education Level:  	Age at Enlistment:  	AFQT:  47	Highest Rank/Rate:  ENFA
Evaluation marks (# of occasions):	Performance:  3.4(1)	Behavior:  4.0(1)		 OTA:  3.17 
Awards and Decorations (per DD 214):  NER, NDSM, GWOTSM

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

20040616:	NJP -- Viol UCMJ Art. 86 – Absence without leave; viol UCMJ Art. 134 – Unlawfully entry.
	Awarded - Restr for (14 days); Extra duties (14 days).

20050810:	NJP -- Viol UCMJ Art. 91 – Insubordinate conduct toward warrant officer, non commissioned officer or petty officer.
	Awarded - Restr for (30 days); Extra duties (30 days).

20050810:	Retention Warning for violation of the UCMJ Article 91 (Contempt or disrespect toward warrant, non commissioned, or petty officer.

20050825:	NJP -- Viol UCMJ Art. 134 – Threat communicating.
	Awarded - Restr for (30 days); Extra duties (30 days).

20050825:	Retention Warning for violation of the UCMJ Article 134 (Threat Communication).

20050902:	Commanding Officer’s letter to Commander Destroyer Squadron 31 recommending denial of NJP appeal.  FA P_ has a documented history of confrontational behavior toward his Chain of Command and peers alike.
  
20050928:	NJP -- Viol UCMJ Art. 91 – Insubordinate conduct toward warrant officer, non commissioned officer or petty officer; viol UCMJ Art. 92 – Failure to obey a lawful order; viol UCMJ Art. 117 – Provoking speeches and gestures; viol UCMJ Art. 89 – Disrespect toward a superior commissioned officer.
	Awarded - Restr for (30 days); Extra duties (30 days).

20050928:	Commanding Officer’s letter setting side the remained of 41 days of restriction awarded on 20050810 and 20050928.
  
	Discharge Process

Date Notified:					20080928
Reason for Discharge:	 - 
	 - 
	
Least Favorable Characterization:	

Date Applicant Responded to Notification:		20051003
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			
	Administrative Board			
	GCMCA review				

Commanding Officer Recommendation (date):	
Separation Authority (date):	COMMANDING OFFICER, USS RUSSELL (DDG 5)(UNDATED)
              Reason for discharge directed:	 - 
              Characterization directed:	
Date Applicant Discharged:	20051005

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)  DVA Rating Decision, Statement in Support of Claim, 2006 Income Tax Return 

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.

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 91, 92, 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