ex-SA, USN
ND07-00348

Current Discharge and Applicant’s Request

Application Received:  20070125 		Characterization Received:  
Narrative Reason:  MISCONDUCT		Authority:  MILPERSMAN 1910-142

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1. Should have received hardship discharge as a sole parent.

Decision

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

Date:  20071011				        		  Location:  Washington D.C.

Discussion

Issue 1 ().   The available record contains credible evidence that the Applicant was separated for misconduct due to commission of a serious offense resulting from his missing movement of transportation to his unit, in disobedience of an order to make such movement.  The Applicant contends that he could not make the movement due to his obligations of as a single parent of his son, and that he should have received a hardship discharge.  While the evidence, including that submitted by the Applicant, indicates that the Applicant was undergoing a divorce and custody dispute in the months preceding his offense, it also indicates that he was given time and assistance by naval authorities to address the divorce and custody issues and the subsequent child care challenges.  Taking at face value the Applicant’s assertion that he had submitted a request for hardship discharge, the Board noted that the Applicant provided no reason, and found none in the record, indicating how such a request may have been improperly evaluated and/or acted upon.  

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.  Taken the evidence as a whole, the Board determined that there was insufficient evidence to overcome that presumption in this case.  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)	20030214 - 20030520  		Active:   
Period of Service Under Review:
Date of Enlistment: 20030521	Years Contracted:  ; Extension:  	Date of Discharge:  20050128
Length of Service:  01  Yrs  08  Mths  08  Dys	Lost Time:  UNABLE TO DETERMINE
Education Level:  	Age at Enlistment:  	AFQT:  64	Highest Rank/Rate:  SN
Evaluation marks (# of occasions):	Performance:  N/A	Behavior:  N/A	 OTA:  N/A 
Awards and Decorations (per DD 214):  NATIONAL DEFENSE SERVICE MEDAL

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

20030214:	Enlistment waiver granted for 2 dependents (wife and stepdaughter).

20030617:	Applicant’s natural son born.

20030624:	Retention warning for fraudulent enlistment by failure to disclose unborn child.

20040514:	Medical Record:  Reason for visit:  get out of deployment because of personal issues (divorce/custody).
	Trouble eating and sleeping x 3 days; tired during day; loss of appetite; pre-service depression with Zoloft use.  Navy has nothing to offer and wants out…
	[NDRB note:  partial entry, no further information in record]

20040610:	Applicant to unauthorized absence.

20040612:	Applicant from unauthorized absence (2 days/surrendered).

20041217:	NJP -- Viol UCMJ Art. 86 - Unauthorized absence, Art. 87 - Missing movement, Art. 92 - Failure to obey a lawful order.
	Awarded - FOP ($666.00) for (2 months); RIR (E-2); Restr for (45 days); Extra duties (45 days).

Discharge Process

Date Notified:					NOT FOUND IN RECORD
Date Applicant Responded to Notification:		NOT FOUND IN RECORD
Commanding Officer Recommendation (date):	NOT FOUND IN RECORD
Separation Authority (date):	NOT FOUND IN RECORD
Date Applicant Discharged:	20050128

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)  Letter from Applicant’s divorce attorney with attachments

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 25 April 2005, 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, Article 87, Missing movement; and Article 92, Failure to obey order or regulation.

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