ex-ETSN, USN
ND07-00588
 
Current Discharge and Applicant’s Request

Application Received:  20070404	Characterization Received:  
Narrative Reason:  MISCONDUCT (SERIOUS OFFENSE) Authority:  MILPERSMAN 1910-142

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1.Isolated incident 
               	
Decision

By a vote of  the Characterization shall  .	
By a vote of  the Narrative Reason shall  MISCONDUCT (SERIOUS OFFENSE).

Date:  20071120               Location:  Washington D.C	 Representation:    

Discussion

Issue 1 ):  The Applicant contends that his discharge was inequitable in that the Navy was downsizing and as a result he was released from active duty due to only one NJP for returning late from Thanksgiving leave.  The NDRB advises the Applicant that despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Navy in order to maintain proper order and discipline.  The Applicant's misconduct is documented in his application package to the NDRB, which shows his service record to be marred by the finding at a nonjudicial punishment (NJP) proceeding on 20041208 of violation of UCMJ Article 92, Failure to obey order or regulation  Additionally, Applicant was given a Retention warning on 20050629, for violation of UCMJ, Art. 134, Disorderly conduct: urinating in public.  This misconduct substantiates the reason for his separation as well as her characterization of service as general (under honorable conditions).  No other characterization could more clearly describe the Applicant's service.  

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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 should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided any documentation of a post-service nature for the Board to consider.  

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)	20030625 - 20031201  		Active:   	
Period of Service Under Review:
Date of Enlistment: 20031202	Years Contracted:  ; Extension:  	Date of Discharge:  20051115
Length of Service:  01  Yrs  11  Mths  03  Dys	Lost Time:  Days UA:    Days Confined:  
Education Level:  	Age at Enlistment:  	AFQT:  86	Highest Rank/Rate:  ET3
Evaluation marks (# of occasions):	Performance:  3.0(3)	Behavior:  1.6(3)	 	OTA:  2.78 
Awards and Decorations (per DD 214):  NDSM

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

20041208:	NJP -- Viol UCMJ Art. 92 on o/ 30 Nov 04 Fail to obey the same by wrongfully wearing civilian attire during phase one NMT, Spec 2: Fail to obey the same by wrongfully operating his privately owned vehicle during phase one NMT.
	Awarded - FOP ($400.00) for (1 month); oral admonition, RIR (E-3) suspended for 6 months; Restriction for (30 days).

20041208:	Retention Warning for Commanding Officer’s NJP imposed on 20041208, violation of the UCMJ, Article 92 (Failure to obey lawful order-violation of Phase I NMT-wrongfully wearing civilian clothes and driving privately owned vehicle.

20050504:	NJP for Violation of UCMJ, Art 92.  Vacation Hearing- Reduction in pay grade awarded and suspended at NJP on 20041208 vacated due to continued misconduct.

20050629:	Retention Warning for VUCMJ Article 134-Disorderly Conduct, to wit: urinating in public.

Discharge Process

Date Notified:					20051115
Reason for Discharge:	 - 
	UNSATISFACTORY PERFORMANCE
Least Favorable Characterization:	GENERAL (UNDER HONORABLE CONDITIONS
Date Applicant Responded to Notification:		20051115
Rights Elected at Notification:
	Consult with Counsel			WAIVED
	Obtain Copies of Documents		
	Submit Statement(s) (date)			
	Administrative Board			
	GCMCA review				
Commanding Officer Recommendation (Date):	
Separation Authority): (Date):	COMMANDING OFFICER, TRANSIENT PERSONNEL UNIT, JACKSONVILLE(20051115
              Reason for discharge directed:	
              Characterization directed:	
Date Applicant Discharged:	20051115

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 11, effective 
26 April 2005 until Present, 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.

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