ex-MSSA, USN
ND07-00614

Current Discharge and Applicant’s Request

Application Received:  20070405 	           Characterization Received:  
Narrative Reason:  MISCONDUCT 					        Authority:  MILPERSMAN 1910-142

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1.  Immaturity, marital problems interfered with ability to serve
			2.  Post-service conduct

Decision

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

Date:  20071129			Location:  Washington D.C	 Representation:  

Discussion

Issue 1 (). The Applicant contends his disciplinary problems were the result of his immaturity and marital problems giving him trouble in adjusting to military life.  The NDRB recognizes that serving in the U.S. Navy is challenging.  Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country.  It must be noted that most members of the Navy serve honorably and therefore earn their honorable discharges.  In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due.  

Issue 2 (). The Applicant provided evidence of post-service employment, community service, and references concerning his good character.  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 the service.  The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge 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.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was found not to mitigate the conduct which precipitated the discharge.

Issue 3  ().  Although not raised by the Applicant, the Board reviewed the record to determine if the reason for discharge, Misconduct – Commission of a Serious Offense, was supported by the evidence.  A “serious offense” for the purposes of administrative separation, is an offense under the Uniform Code of Military Justice (UCMJ) for which a punitive discharge is authorized upon conviction at special or general court-martial.  The Board noted that the Applicant’s service record documented a single nonjudicial punishment for several violations of the UCMJ, Article 86, Absence without leave (UA), and 2 violations of the UCMJ, Article 92, Failure to obey order or regulation.  The Article 86 offenses all appeared to be of a “failure to go” type offense.  Such offenses, while appropriately punished, do not meet the definition of a “serious offense” for the purposes of administrative separation for misconduct – commission of a serious offense.  The Article 92 offenses were dereliction of duty offenses.  These are considered “serious offenses” if they were committed “willfully” rather than by neglect.  The record does not specifically indicate whether or not the Applicant’s derelictions of duty were willful or negligent.  However, the government is entitled to a presumption of regularity in the conduct of its affairs.  Therefore, the Board concluded that there was either additional misconduct constituting a serious offense not reflected in the record, or that the one or both of the Applicant’s derelictions of duty was willful.  The Board found that the Applicant’s separation code, GKQ, reflecting a discharge based on an approved recommendation from an administrative discharge board, supported its reliance on the presumption of regularity in this case.  Although the administrative discharge proceedings were not found in the Applicant’s service record, the Board presumed that the proceedings were conducted in a proper and regular manner, and found that the Applicant's service was equitably characterized.  
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)	19981218 - 19990113  		Active:   
Period of Service Under Review:
Date of Enlistment: 19990831	Years Contracted:  	Date of Discharge:  20011227 	Lost Time:  
Length of Service:  Active:  02  Yrs  03  Mths  25  Dys	Inactive:  00  Yrs  00  Mths  03  Dys
Education Level:  	Age at Enlistment:  	AFQT:  39	Highest Rank/Rate:  MSSN
Evaluation marks (# of occasions):	Performance:  2.0(1)	Behavior:  2.0(1)	 	OTA:  1.83 
Awards and Decorations (per DD 214):  NONE

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

20011022:	NJP -- Viol UCMJ Art.86 (14 specifications) -.Unauthorized absences between 20000417 and 20011009; Art. 92 (2 specifications) - Dereliction in the performance of duties on 20010426 and 20010729.
	Awarded - FOP ($585.00) for (2 months); RIR (E-2); Restr for (45 days); Extra duties (45 days).

Discharge Process

Date Notified:					NOT FOUND IN RECORD
Reason for Discharge:	
Least Favorable Characterization:	

Date Applicant Responded to Notification:		NOT FOUND IN RECORD
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			
	Administrative Board			
	GCMCA review				

Administrative Board Date, if any:	NOT FOUND IN RECORD

Commanding Officer Recommendation (date):	
Separation Authority (date):	NOT FOUND IN RECORD
              Reason for discharge directed:	
              Characterization directed:	
Date Applicant Discharged:	20011227

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 31, dated 20 February 2001, effective 25 January 2001 until 21 August 2002, 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 violation of the UCMJ, Article 92, Failure to obey order or regulation (Willful dereliction of duty).

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