ex-HTFN, USN
ND07-00541

 Current Discharge and Applicant’s Request

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

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

Applicant’s Issues:	1.  Characterization does not reflect the personal character of today 
			2.  Immature actions resulted in discharge.
			3.  Post Service – 6 letters of recommendation and Electrical Engineering degree.

Decision

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

Date:  20071115		Location:  Washington D.C	 Representation:  

Discussion

Issue 1 ():  The Applicant contends that his characterization does not reflect his personal character.  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 a civilian conviction and four nonjudicial punishments for violations of UCMJ Articles 86 (unauthorized absence, four specifications), 92 (failure to obey), 107 (false official statement, two specifications) and 128 (assault).  Violations of Articles 92, 107 and 128 are defined as “serious offenses”, which forms the basis for discharge in this case.  Violations of UCMJ Articles 92, 107 and 128 carry a maximum 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, which forms the primary basis for determining the characterization 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 his characterization of service. 

Issue 2 ():  The Applicant asserts that his discharge was based actions which were the result of his immaturity.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with the standards of discipline of the naval service.  Based upon the record, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy.  An other than honorable conditions 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.  The evidence supported the misconduct for which the Applicant was administratively discharged. That separation was appropriate, and an under other than honorable conditions characterization of service was warranted. 

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 a six letters of recommendation and his diploma from the California State University statement to the board 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 verifiable employment records, 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 the characterization of his service.  

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 

Summary of Service

Prior Service:
Inactive: USANG		19890117 - 19910903  	USNR (DEP)	19921006 - 19921122  
Period of Service Under Review:
Date of Enlistment: 19921123	Years Contracted:  ; Extension:  	Date of Discharge:  19951117
Length of Service:  02 Yrs 11 Mths 25 Dys				Lost Time:  4
Education Level:  	Age at Enlistment:  	AFQT:  93	Highest Rank/Rate:  HT3
Evaluation marks (# of occasions):	Performance:  3.8(4)	Behavior:  3.6(4)		 OTA:  3.75 (4)
Awards and Decorations (per DD 214):  NDSM, SSDR, SASM, BER

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

19930618:	NJP - Viol UCMJ Art. 107 (false official statement); Viol UCMJ Art. 128 (assault) by striking AA A_ in the face with his fist.
	Awarded - FOP ($474.00 for 2 months); RIR (E-2).  RIR suspended for 6 months.

19940116:	Applicant arrested on charges of burglary.

19940117:	Applicant to unauthorized absence.

19940120:	Applicant from unauthorized absence (3 days, surrendered).

19940419:	Civil Conviction:  Superior Court of California for violation of misdemeanor malicious vandalism.
	Sentence:  Fine $50.00, community service (10 hours) and probation (3 years).

19940505:	NJP - Viol UCMJ Art. 86 (unauthorized absence) 17 – 20 Jan 1994 (3 days/surrendered).
	Awarded - RIR (E-2); Restr (30 days); Extra duties (30 days).  All punishment suspended for 6 months.

19940505:	Retention Warning for unauthorized absence.

19940619:	Applicant to unauthorized absence at 0715.

19940620:	Applicant from unauthorized absence at 0715 (1 day).

19940710:	Unauthorized absence from 0700 until 0900.

19940808:	NJP - Viol UCMJ Art. 86 (unauthorized absence, 2 specs) 19-20 June 1994 and 0700 to 0900 on 10 Jul 1995 and Viol of UCMJ Art. 107 (false official statement on 20 June 1994).
	Awarded - FOP ($557.00 for 1 month); RIR (E-3); Restr (30 days); Extra duties (30 days).

19940813:	Unauthorized absence from 1830 until 2105.

19940825:	Vacate reduction awarded at NJP dated 19940808.

19950908:	NJP - Viol UCMJ Art. 86 (unauthorized absence) on 13 Aug 1994 and Viol of UCMJ Art. 92 (failure to obey a lawful order) alcohol related incident on 13 Aug 1994.
	Awarded - FOP ($525.00 for 1 month); Restr (30 days); Extra duties (30 days).

Discharge Process

Date Notified:					19950911
Reason for Discharge:	 - 
	 - 
	 - 
Least Favorable Characterization:	

Date Applicant Responded to Notification:		19950918
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement (date)			
	Administrative Board			

Commanding Officer Recommendation (date):	 (19951011)
Separation Authority (date):	BUPERS (19951031)
              Reason for discharge directed:	 - 
              Characterization directed:	
Date Applicant Discharged:	19951117

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 National Personnel Records Center

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective 22 July 1994 until 2 October 1996, 
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 each violation of UCMJ, Articles 92, 107 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