ex-STGSN, USN
ND07-00527

Current Discharge and Applicant’s Request

Application Received:  20070308	Characterization Received:  
Narrative Reason:  MISCONDUCT PATTERN OF MISCONDUCT 		Authority:  MILPERSMAN 3630600

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

Applicant’s Issues:	1. (Equity) – Personal, family and material problems contributed to misconduct.
			2. (Equity) – Command acted unfairly by allowing reenlistment.
			3. (Equity) – Post service – education, employment, family.

Decision

Date:  20080213		Location:  Washington D.C	 Representation:  American Legion

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

Discussion

Issue 1 (Equity):  The Applicant contends that his personal and family problems contributed to his misconduct thereby making his other than honorable characterization of service was too harsh.  The Applicant’s service was marred by a retention warning for indebtedness followed four months later by nonjudicial punishment for violations of UCMJ Articles 107 (false official statements, two specifications), 132 (fraud against the government) and 134 (failure to pay just debits, seven specifications).  The failure to pay just debits forms the basis for the Applicants administrative discharge based on a pattern of misconduct.  The Applicant was notified of his impending discharge and of his right to consult counsel and be heard before an Administrative discharge board.  The Applicant waived all rights except the right to obtain copies of the discharge documents and did not object to his discharge or characterization of service.  After assuring compliance with MILPERSMAN 3630600 the separation authority directed the Applicant’s discharge by reason of misconduct due to a pattern of misconduct with 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.  A other than honorable characterization of service 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.  For the information of the Applicant, violations of UCMJ Articles 107, 132 and 134 carry a penalty of a dishonorable discharge and up to five years of imprisonment for each specification if adjudicated by a court martial.  The Applicant’s conduct reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade in his characterization of service. 

Issue 2 (Equity):  The Applicant contends that he command acted unfairly in allowing his reenlistment.  In reviewing discharges, the Board presumes regularity in the conduct of government affairs unless there is substantial credible evidence to rebut the presumption.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence.  Specifically with regard to an impropriety or inequity there is no evidence in the record, nor has the Applicant produced any evidence, to support his contention that the command knew of his financial issues prior to his reenlistment and maliciously allowed his reenlistment with the intention of discharging him shortly thereafter.  To the contrary the record documents a retention warning notifying the Applicant of his indebtedness problem and providing guidance on where to seek help for this problem.  The Applicant was not discharged until six months later following several additional NSF checks and the Applicant’s failure to correct previous financial problems being brought to the attention of the command.  Based upon the record, nothing indicates that the Applicant’s discharge was in any way inequitable based on the standards of the United States Navy.  The Board could discern no impropriety or inequity and therefore considers the discharge proper and equitable.  

Issue 3 (Equity):  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 provided documentation of many years worth of advanced and specialized education and three reference letters to the board.  He also testified to his lack of a criminal record, continuous employment, marriage, child support, volunteer work done through his employment and his controlled  and seldom use of alcohol as documentation of his post-service accomplishments.  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.  

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 82 NOV 20 - 92 SEP 03”
	
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)	19820908 - 19821128  		Active:   19821129 - 19860909  
									19860910 - 19920903  
Period of Service Under Review:
Date of Enlistment: 19920904		Years Contracted:  			Date of Discharge:  19930318
Length of Service:  00 Yrs 06 Mths 15 Dys					Lost Time:  
Education Level:  	Age at Enlistment:  	AFQT:  61	Highest Rank/Rate:  STG1
Evaluation marks (# of occasions):	Performance:  3.6 (1)	Behavior:  2.0 (1)	 	OTA:  3.4 (1) 
Awards and Decorations (per DD 214):  NGCM (W/Bronze Star), MUCR, NDSM

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

19920904:	Reenlisted this date for a term of 4 years.

19920911:	Retention Warning for series of letters alleging indebtedness.

19930114:	NJP - Viol UCMJ Art. 107 (false official statement, 2 specifications) falsely claiming dependents following divorce, drafted letter on command letter head containing CO’s signature to his landlord; viol UCMJ Art. 132 (fraud against the United States) false claim for VHA/BAQ; viol UCMJ Art. 134  (failure to pay just debts, 7 specifications) NSF checks and unpaid debts totaling $2227.28 for rent, uniforms and cash at NEX.
	Awarded - FOP ($630.00 for 2 months) conditionally suspended for 6 months based on payments of  just debts; RIR (E-4); Restr (30 days); Extra duties (30 days).

NDRB Documentary Review Conducted (date):  None	
Applicant Testified:  
Applicant Available for Questions:  
Witnesses:  None
Observers:  None 

Discharge Process

Date Notified:					19930201
Reason for Discharge:	 - 
	 - 
	
Least Favorable Characterization:	

Date Applicant Responded to Notification:		19930201
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			
	Administrative Board			
	
Commanding Officer Recommendation (date):	 (19930210)
Separation Authority (date):	BUPERS WASHINGTON DC (19930308)
              Reason for discharge directed:	 - 
              Characterization directed:	
Date Applicant Discharged:	19930308

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, Change 5, effective 05 Mar 93 until 21 Jul 94), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - A PATTERN OF MISCONDUCT. 

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 violations of the UCMJ, Articles 107, 132, 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