ex-MSSR, USN
ND07-00449

Current Discharge and Applicant’s Request

Application Received:  20070222	Characterization Received:  
Narrative Reason:  USN-MISCONDUCT SERIOUS OFFENSE 	Authority:  MILPERSMAN 3630600

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

Applicant’s Issues:	1.  Narrative reason says serious offense, never committed a serious offense.

Decision

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  Misconduct - commission of a serious offense.

Date:  20071101  					Location:  Washington D.C. 

Discussion

Issue 1 ():  The Applicant contends that he never committed a serious offense.  Despite a servicemember’s prior record of service certain serious offenses warrant separation from the naval service in order to maintain proper order and discipline.  The Applicant’s summary of service clearly documents the Applicants misconduct resulting in two nonjudicial punishments for violations of UCMJ Articles 86 (unauthorized absence, 10 specifications), 92 (failure to obey), 117 (provoking speech), and 128 (assault).  Violations of Articles 92 and 128 constitute the “commission of a serious offense”, which forms the basis for discharge in this case.  Violations of UCMJ Articles 92 and 128 carry a penalty of a punitive discharge for each specification if adjudicated by a court martial.  The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects the Applicant’s willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade to the Applicant’s characterization of service. 

For the edification of the Applicant, the NDRB does have the authority to change a narrative reason for separation when appropriate.  The Naval Military Personnel Manual designates specific phraseology to be used in block 28 of the DD-214.  In the Applicant’s case the separation process was in strict compliance with the Naval Military Personnel Manual.  The Applicant was properly processed for separation by reason of misconduct due to the commission of a serious offense.  The summary of service clearly documents the Applicants violations of UCMJ Articles 92 (failure to obey) and 128 (assault).  Violations of UCMJ Articles 92 and 128 each constitute the “commission of a serious offense”.  The separation authority directed that that Applicant be discharged by reason of misconduct due to the commission of a serious offense.  The Naval Military Personnel Manual, Article 3630600 (for the period in question) directs that Block 28 contain the phrase “Misconduct – commission of a serious offense” when separating under these conditions.  Since no other Narrative Reason for separation could more clearly describe why the Applicant was discharged, a change would be inappropriate.

In reviewing discharges, the Board presumes regularity in the conduct of Government 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 

Summary of Service

Prior Service:
Inactive: USNR (DEP)	19881119 - 19890615  		Active:   	
Period of Service Under Review:
Date of Enlistment: 19890616	Years Contracted:  ;   		Date of Discharge:  19920518
Length of Service:  02 Yrs 11 Mths 03 Dys				Lost Time:  Days UA:  4  
Education Level:  	Age at Enlistment:  18	AFQT:  36	Highest Rank/Rate:  MSSA
Evaluation marks (# of occasions):	Performance:  2.5		Behavior:  2.4		 OTA:  2.40  (3)
Awards and Decorations (per DD 214):  COAST GUARD SPECIAL OPERATION RIBBON, SEA SERVICE DEPLOYMENT RIBBON, NAVY UNIT COMMENDATION RIBBON, NATIONAL DEFENSE SERVICE MEDAL, SOUTHWEST ASIA DEFENSE MEDAL WITH TWO BRONZE STARS, KUWAIT LIBERATION MEDAL

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

19900719:	Applicant to unauthorized absence at 0800.

19900719:	Applicant from unauthorized absence at 1200.

19901103:	Applicant to unauthorized absence at 0745.

19901103:	Applicant from unauthorized absence at 1100.

19910903:	Applicant to unauthorized absence at 0645.

19910903:	Applicant from unauthorized absence at 0730.

19910925:	Applicant to unauthorized absence at 1700.

19910926:	Applicant from unauthorized absence at 0645.

19911003:	Applicant to unauthorized absence at 0645.

19911003:	Applicant from unauthorized absence at 0815.

19911030:	NJP - Viol UCMJ Art. 86 (unauthorized absence) from 1700 on 19910925 until 0645 on 19910926; Viol UCMJ Art. 117 (provoking speech) on 19911018; Viol UCMJ Art. 128 (assault) on 19911018.
	Awarded - RIR; Restr (30 days); Extra duties (30 days).

19911130:	Applicant to unauthorized absence at 0700 on 19911130.

19911202:	Applicant from unauthorized absence at 0700 on 19911202 (2 days/surrendered).

19920421:	Applicant to unauthorized absence at 0730 on 19920421.

19920423:	Applicant from unauthorized absence at 0730 on 19920423 (2 days/surrendered).

19920423:	NJP - Viol UCMJ Art. 86 (unauthorized absence, 9 Specs); Viol UCMJ Art. 92 (failure to obey) by sleeping in rack in uniform on 19920311.
	Awarded - FOP ($400.00 for 1 month); Restr (30 days).

19920428:	Commanding Officer USS DETROIT (AOE 4) recommended to Chief of Naval Personnel the Applicant’s discharge under other than honorable conditions.  Commanding Officer’s comments:  “MSSA W_ (Applicant) has been to Captain’s mast twice for serious offenses, assault and battery and violation of a lawful order.  In addition, MSSA W_ has virtually gone on strike absenting himself without authority form his workcenter on nine separate occasions during the month of April 1992.  His absences often occur in the middle of the workday, in one instance he was ordered out of his rack in the middle of the day.  MSSA W_ has clearly demonstrated intense dislike for the military service and absolute disregard for authority.  He has verbally expressed, in no uncertain terms, his desire to leave the Navy.  He has indicated that he does not object to processing, asking only how long it would take to get him sent home.  In view of the above, MSSA W_ has no potential for further useful service.  I recommend immediate administrative discharge under other than honorable conditions.” 

Discharge Process

Date Notified:					19920427
Reason for Discharge:	 - 
		
Least Favorable Characterization:	

Date Applicant Responded to Notification:		19920428
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			
	Administrative Board			
	
Commanding Officer Recommendation (date):	 (19920428)
Separation Authority (date):	BUPERS WASHINGTON DC (19920508)
              Reason for discharge directed:	 - 
              Characterization directed:	
Date Applicant Discharged:	19920518

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), effective 15 Aug 91 until 04 Mar 93, 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 and 128.

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