ex-ET2, USN
ND07-00501

Current Discharge and Applicant’s Request

Application Received:  20070302 		Characterization Received:  
Narrative Reason:  MISCONDUCT 				Authority:  MILPERSMAN 1910-142

Applicant’s Request:	Characterization change to:  
			Narrative Reason change: Not Specified

Applicant’s Issues:	1.  Manual for Courts Martial was not followed.
			2.  Verdict based on perjured testimony

Decision

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

Date:  20071108  					Location:  Washington D.C.

Discussion

Issue 1 and 2 ():  The Applicant contends that his court martial was improperly processed and that the verdict was based on perjured testimony.  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 claim.  There is no evidence in the record, nor has the Applicant produced any evidence, to support these contentions.  To the contrary in the Applicant’s own statement to the Board he admits violating the military protective order, to harassment and to assaulting his former roommate, furthermore he states that he has not read the manual for courts martial and he provides no evidence to substantiate his claim of perjured testimony.  Even if the Applicant could document his claim this would neither amount to a justification nor to a defense for the Applicant’s own misconduct.  Each violation of UCMJ Article 92 and 134 constitutes the “commission of a serious offense” which forms the basis for the Applicant’s discharge and is punishable by a dishonorable discharge and up to 3 years of imprisonment for each specification.  The record supports the commission of a serious offense for which the Applicant was administratively discharged. The separation was appropriate and a general (under honorable conditions) characterization of service is warranted.  The Board found the Applicant’s discharge proper and equitable.  

With regard to the Applicant’s request to have his narrative reason for discharge changed, the NDRB will change the reason for discharge if such a change is warranted.  The MILPERSMAN 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 administratively processed for separation by reason of misconduct due to the commission of a serious offense.  The Applicant’s record clearly documents his summary court martial conviction for violations of UCMJ Articles 92 and 134 (which are considered serious offenses).  The Applicant waived his right to consult counsel and to present his case before an administrative review board.  The separation authority directed that that Applicant be discharged after ensuring compliance with the Naval Military Personnel Manual 1910-142.  Applicable regulations for the period in question direct that Block 28 contain the phrase “MISCONDUCT” when separating under these conditions.  To change the Narrative Reason Separation would be inappropriate.

For the edification of the Applicant, 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 or based upon a disability ruling by the Veterans Administration.  

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 

Administrative Corrections to the Applicant’s DD 214

The NDRB did note an administrative error on the original DD Form 214:

	  “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 920310 UNTIL 940407”
	
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)	19910603 - 19920309  		Active:   	19920310 - 19940407  
Period of Service Under Review:
Date of Enlistment: 19940408		Years Contracted:  	Date of Discharge:  19990719
Length of Service:  05 Yrs 03 Mths 12 Dys				Lost Time:  
Education Level:  	Age at Enlistment:  	AFQT:  99	Highest Rank/Rate:  ET1
Evaluation marks (# of occasions):	
Performance:  4.0		Behavior:  4.0		 OTA:  4.00 (1)	4.0 evals
Performance:  3.6		Behavior:  3.4	 	OTA:  3.54 (5)	5.0 evals
Awards and Decorations (per DD 214):  ARMED FORCES EXPEDITIONARY MEDAL, GOOD CONDUCT MEDAL (2), NAVY AND MARINE CORPS ACHIEVEMENT MEDAL, NAVY UNIT COMMENDATION, SEA SERVICE DEPLOYMENT RIBBON

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

19940408:	Applicant reenlisted for 6 years, receiving a selective reenlistment bonus.

19960619:	Applicant transferred to USS NIMITZ (CVN 68). 

19980212:	Applicant awarded Navy Achievement Medal.

19981030:	Applicant completed Level III residential treatment at Substance Abuse Rehabilitation Department, Naval Hospital Norfolk.

19990614:	Summary Court Martial - Viol UCMJ Art. 92 (Failure to obey, 3 specs) - (1) Failure to obey a lawful general order between March 1999 and May 1999, (2) Sexually harass two female shipmates,  (3) violating a military protective order; Viol UCMJ Art. 128 (simple assault); Viol UCMJ Art. 134 (communicating a threat).
	Awarded - RIR (E-5); Restr (60 days).
	CA action:  19990614, approved.

20060112:	BCNR changed Applicant’s characterization of service to General (under honorable conditions).

Discharge Process

Date Notified:					19990624
Reason for Discharge:	 - 
	
Least Favorable Characterization:	

Date Applicant Responded to Notification:		19990624
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			
	Administrative Board			
	
Commanding Officer Recommendation (date):	 (19990624)
Separation Authority (date):	COMNAVAIRLANT NORFOLK VA (19990709)
              Reason for discharge directed:	 - 
              Characterization directed:	
Date Applicant Discharged:	19990719

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 Navy Personnel Command
				Letter from Waple and Associates to R_ W. S_, Jr.
				Letter to Head, Disability Section, Board for Correction of Naval Records
				Letter to Waple and Associates from Board for Correction of Naval Records
				Letter from Director, Secretary of Navy Council of Review Boards to Executive Director, 						Board for Correction of Naval Records
				Letter from Waple and Associates to R_ W. S_, Jr
				Letter to applicant
				Letter to Secretary of the Navy
				Power of Attorney

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 December 1997 until 29 March 2000, 
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 each violation of the UCMJ, Articles 92 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 “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