ex-ATAN, USN
ND07-00350

Current Discharge and Applicant’s Request

Application Received:  20070125 	Characterization Received:  
Narrative Reason:  MISCONDUCT - COMMISSION OF SERIOUS OFFENSE 	Authority:  MILPERSMAN 1910-142

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

Applicant’s Issues:	1.  Inequitable based on isolated incident.
			2.  Inequitable – does not reflect true character of Applicant.
			3.  Inequitable – not recent or habitual.
			4.  Inequitable – Applicant has no intent to abuse drugs.

Decision

Date:  20080227		Location:  Washington D.C	 Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

Discussion

Issues 1, 2, 3, and 4 ():  Despite a servicemember’s prior record of service certain serious offenses even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  The characterization of service is a description of the total service provided during the member’s enlistment.  When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable (or general under honorable conditions).  An under other than 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 his nonjudicial punishment for violations of UCMJ Articles 92 (2 specifications) and 115.  Violations of UCMJ Article 92 constitute the “commission of a serious offense”, the discharge basis in this case.  This specific violation is punishable by a bad conduct discharge and up to six months of imprisonment for each specification, if adjudicated by a Courts Martial.  The record clearly reflects the Applicant’s willful misconduct and the Applicant admitted to knowingly violating the orders for which he was punished at nonjudicial punishment.  The Applicant was notified of his impending discharge and of his rights to consult counsel and be heard before an Administrative discharge board.  The Applicant waived all rights and did not object to his discharge or characterization of service.  After assuring compliance with MILPERSMAN 1910-142 the separation authority directed the Applicant’s discharge by reason of misconduct due the commission of a serious offense 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.  The Board found the Applicant’s discharge proper and equitable.

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 testified under oath that he has no outstanding warrants, has received one moving violation since discharge from the Naval service, he currently is employed 30 hours a week while attending college full time, and he has been a active leader in college clubs and organizations.  He also provided an unofficial transcript documenting an Associate of Arts degree, a copy of his University of Texas ID, and a print out of his current class schedule at UT Austin 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 official evidence of continuing educational pursuits, a verifiable employment record, 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 did note an administrative error on the original DD Form 214:

	  “Continuous honorable service from 01 OCT 25 - 04 OCT 24”
	
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)	20010330 - 20011024  		Active:   	20011025 - 20041024  
Period of Service Under Review:
Date of Enlistment: 20041025		Years Contracted:    		Date of Discharge:  20050831
Length of Service:  00 Yrs 10 Mths 09 Dys					Lost Time:  
Education Level:  		Age at Enlistment:  20		AFQT:  88	Highest Rank/Rate:  AT3
Evaluation marks (# of occasions):	Performance:  3.0 (1)	Behavior:  3.0 (1)	 	OTA:  3.0 (1)
Awards and Decorations (per DD 214):  SSDR, NDSM, GWOTSM, GCM

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

20041025:	Applicant reenlisted for 5 years.

20050425:	Applicant reports for duty aboard USS KITTY HAWK (CV63), homeported in Yokosuka, Japan.

20050528:	Applicant de-screened for overseas duty following seven examinations with USS KITTY HAWK medical department resulting in diagnosis of adjustment disorder stemming from suicidal idealations.  This record screening also highlighted false statements by the Applicant on enlistment documents and health screenings when questioned about mental history.  

20050604:	Applicant admitted USS KITTY HAWK (CV 63) Medical for suicidal gestures, Applicant self referred asking for stomach to be pumped.

20050810:	NJP - viol UCMJ Art. 92 (failure to obey and dereliction in performance of duties, 2 specs); Art. 115 (malingering).
	Awarded - FOP ($850.00 for 2 months); RIR (E-3); Restr (30 days).

20050812:	Commanding Officer USS KITTY HAWK (CV 63) recommended the Applicant’s discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense to Commander, Carrier Strike Group Five.  Commanding Officer’s comments:  “During his tenure aboard USS KITTY HAWK, ATAN W_’s (Applicant) behavior has been nothing short of cowardly.  He has completely rejected the Navy’s Core Values of Honor, Courage, and Commitment and instead has set himself on a course to break his oath to serve.  He has feigned suicidal ideations and invoked his spiritual beliefs in a persistent attempt to escape his naval service.” 

Discharge Process

Date Notified:					20050810
Reason for Discharge:	 - 
Least Favorable Characterization:	

Date Applicant Responded to Notification:		20050811
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			  (NOT FOUND IN RECORD)
	Administrative Board			
	
Commanding Officer Recommendation (date):	 (20050812)
Separation Authority (date):	COMMANDER, CARRIER STRIKE GROUP FIVE (20050813)
              Reason for discharge directed:	 - 
              Characterization directed:	
Date Applicant Discharged:	20050831

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)  Authorization to release confidential information
Declaration of authorization and representative
Newspaper article

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, Article 92.