ex-ETSN, USN
ND07-00440

Current Discharge and Applicant’s Request

Application Received:  20070221	Characterization Received:  
Narrative Reason:  MISCONDUCT Authority:  MILPERSMAN 1910-142

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: For the Convenience of the Government
Applicant’s Issues:	1. Given direct order to return to full duty contrary to Dr’s Order
			2. Isolated incident
3. Post service

Decision

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

Date:  20070125       					Location:  Washington D.C. 

Discussion

Issue 1 ().  The Applicant contends that his discharge was inequitable and improper because he was ordered to return to full duty against doctors orders and that he was given a direct order that was based on a biased medical evaluation.  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(s).  A review of the Applicant’s medical record reflects that on 20 September 2002, the medical provider indicated that “you may continue to run and PT at CCU.”  On 25 September 2002, the same medical provider noted that there was no significant risk for permanent injury and “member is full duty.”  The board has determined that there is no evidence in the record, nor has the Applicant produced any evidence to overcome the government’s presumption of regularity in this case.  

Issue 2 ().  The Applicant further contends his discharge was based on one isolated incident in “34 months” of service.  Despite a service member’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 Applicant’s service record is marred by an award of non judicial punishment (NJP) for driving on base under the influence, thus substantiating the misconduct for which he was separated.  The summary of service clearly documents that misconduct due to driving under the influence was the reason the Applicant was discharged.  Additionally, the board has determined that no other Narrative Reason for Separation could more clearly describe why the Applicant was discharged.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considers his discharge proper and equitable.  

Issue 3 ().  The Applicant also submitted matters pertaining to his post service accomplishments for consideration.   There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on 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 should 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.  Although the Applicant mentions his educational pursuits, current employment and lack of involvement with police, he has not provided any post-service documentation to consider mitigating the misconduct 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 

Summary of Service

Prior Service:
Inactive: USNR (DEP)	19991028 - 19991227  		Active:   	
Period of Service Under Review:
Date of Enlistment: 19991228	Years Contracted:  ; Extension:    	Date of Discharge:  20021023
Length of Service:  02  Yrs  09  Mths  26  Dys	Lost Time:  Days UA:    Days Confined:  
Education Level:  	Age at Enlistment:  	AFQT:  64	Highest Rank/Rate:  ET3
Evaluation marks (# of occasions):	Performance:  3.5(4)	Behavior:  2.0(4)		 OTA:  2.47 
Awards and Decorations (per DD 214):  NATIONAL DEFENSE SERVICE MEDAL, NAVY PISTOL MARKSMAN RIBBON

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

20020905:	NJP -- Viol UCMJ Art. 111 – Drunken or reckless operation of vehicle.
	Awarded - FOP (1/2 pay) for (2 months); RIR (E-3); Correctional Custody for (30 days).
20020810	Incident Complaint Report- Fields in violation of UCMJ Art 111- Drunken Driving aboard Naval 
                              Amphibious Base Coronado.
Discharge Process

Date Notified:					20020930
Reason for Discharge:	 - 
	
Least Favorable Characterization:	

Date Applicant Responded to Notification:		20020930
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			  (20020905)
	Administrative Board			
	GCMCA review				

Commanding Officer Recommendation (date):	
Separation Authority (date):	48COMMANDING OFFICER, NAVAL SPECIAL WARFARE GROUP ONE (20021015)
              Reason for discharge directed:	 - 
              Characterization directed:	
Date Applicant Discharged:	20021023

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), re-issued October 2002, effective 22 August 2002 until 25 January 2004, Article 1910-142 [formerly 3630605], 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.

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