ex-RMSN, USN

Current Discharge and Applicant’s Request

Application Received:  20070125	
Characterization Received:  
Narrative Reason:  MISCONDUCT 	
Authority:  MILPERSMAN 3630620 (SERIOUS OFFENSE)

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

Summary of Service

Prior Service:
Inactive: USNR (DEP)	19900124 - 19900204  		Active:   	

Period of Service Under Review:
Date of Enlistment: 19900205		Years Contracted:       Extension:  		Date of Discharge:  19931207
Length of Service:  03  Yrs  10  Mths  02  Dys	Lost Time:  NONE      UA:          Days Confined:  
Education Level:  	Age at Enlistment:  	AFQT:  25	Highest Rank/Rate:  RM3
Evaluation marks (# of occasions):	Performance:  3.6 (5)	Behavior:  3.5 (3)		 OTA:  3.77 
Awards and Decorations (per DD 214):  JMUA, NDSM, SASM w/bronze star, SSDR, CGR

NJPs:	
19910412: Article 128 (Assault), 2 specifications. 
	       Article 117 (Provoking words), 3 specifications.
                  Awarded:  ,,,.  Susp - .
 
19920109: Article 92 (Disobeying a lawful regulation).
                  Article 128 (Assault). 
                  Awarded:  ,.  Susp - .

19931016: Article 134 (Drunk and disorderly).
                  Awarded:  ,,.

19931108: Article 112a (Wrongfully possessing a controlled substance).
                  Awarded:  ,,,.  

Retention Warnings: .
                                   Undated: For violation of UCMJ Article(s) 128 and 117.
                                   19920116: For violation of UCMJ Article(s) 92 and 128.

Types of Documents Submitted/reviewed

Related to Military Service:	DD 214:  	Service and/or Medical Record:  		Other Records:  
Related to Post-Service Period:	
	Employment:			Finances:			Education/Training:	
	Health/Medical Records:		Substance Abuse:			Criminal Records:	
	Family/Personal Status:		Community Service:		References:		
Additional Statements From Applicant:  		From Representation:  		From Member of Congress:  
Other Documentation (Describe) 

NDRB Documentary Review Conducted (date):	20050107
NDRB Documentary Review Docket Number:	ND04-01095
NDRB Documentary Review Findings:		No change warranted.

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues: 

1. Youth and immaturity.    
2.  Post service conduct.

Decision

Date:  20080806		Location:  Washington D.C	 Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  MISCONDUCT (SERIOUS OFFENSE).

Discussion

Issue 1: () RELIEF NOT WARRANTED.  The Applicant claims his ability to serve was impaired by his youth and immaturity, and his personal problems contributed to his misconduct. While he may feel his immature acts and personal problems were the underlying cause of his misconduct, the evidence of record did not show the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions due to youth, immaturity, or personal problems.  

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.  The Applicant’s record of service was marred by 2 retention warnings and 4 non-judicial punishments for violations of the Uniform Code of Military Justice, Articles 92, 117, 112a, 128, and 134.  These violations are considered serious in nature and could have warranted a punitive discharge and confinement if adjudicated by a special or general court-martial.  The command did not pursue a punitive discharge but opted instead for an administrative discharge.  

The Applicant’s misconduct spans from April 1991 until November 1993, more than enough time for the Applicant to seek command help for personal problems effecting his performance and behavior.  There was not convincing evidence presented during the personal hearing which mitigated his misconduct, nor was any provided as supporting documentation.  The Board determined an upgrade based on youth, immaturity, and personal problems would be inappropriate.

Issue 2: () RELIEF NOT WARRANTED.  The Applicant requested the Board to consider his post-service conduct in assessing the merits of his upgrade request.  Normally, to permit relief, a procedural impropriety or inequity must have existed during the period of enlistment in question.  Additionally, 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.  Upon review of the Applicant’s record, and during discussions with the Applicant at the personal appearance, it was determined no impropriety or inequity occurred during the Applicant’s enlistment.  

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.  Supporting documentation to help support a post service conduct upgrade include, but is not limited to: a verifiable continuous employment record; documentation of community or church service; documentation of a drug free lifestyle; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card company’s or other financial institutions; and character witness statements.   The Applicant should be aware completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service conduct mitigates the reason for the characterization of discharge.   

The Applicant produced only 2 character witness letters, one from his brother and the other from a Deck Department supervisor from the USS Texas CGN-39 during the time the Applicant was in the Navy.  To warrant an upgrade the Applicant’s post service efforts needed to be more encompassing and verifiable.  The Applicant could have provided evidence as referenced in the above paragraph for the Board to review as post service conduct documentation.  Additionally, the Applicant’s statements concerning his post-service conduct, without documented evidence, were not found to mitigate the misconduct which 

precipitated the discharge.  The Board determined based on the documentation provided an upgrade would be inappropriate and the characterization of service received, “Under Other Than Honorable Conditions”, was an appropriate characterization considering the time served and the extent of his UCMJ violations.  The Board determined an upgrade was not warranted.

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 

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 5, effective 05 Mar 93 until 21 Jul 94, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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 92, 112a, 117, 128 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 other medical related reasons.  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