ex-AR, USN
ND07-00634 

Application Received:  20070417 	Characterization Received:  
Narrative Reason:  MISCONDUCT DUE TO COMMISSION OF SERIOUS OFFENSES Authority:  MILPERSMAN 1910-142

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

Applicant’s Issues:	         1. Re Code 
	         2. Seeking reenlistment
                                            3. No misconduct

Decision

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

Date:  20071101       					Location:  Washington D.C. 	

Discussion

Issues 1-2.  The Applicant contends that he has attempted to reenlist in the Navy for the past year but is unable to do so because of his RE Code.    which the Board does not have the authority to grant the relief Applicant is seeking.  Therefore, Applicant is directed to the attached Addendum for additional information regarding Reenlistment/RE-codes.  

Issue 3 ().  Applicant contends that it has been nine years since he was separated for serious misconduct. He admits that he made mistakes and has learned his lesson.  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.  The Applicant provided letters of reference from government officials and a friend.  However, none of letters provided insight into Applicant’s post employment activities.  The Applicant's efforts need to be more encompassing.  For example, the Applicant could have produced detailed evidence of a verifiable employment record, educational pursuits, 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 circumstances that resulted in the characterization of discharge.  As of this time, the Applicant has not provided sufficient post-service documentation to consider mitigating the misconduct that resulted in the characterization of his discharge. 

Issue 4 (Equity).  The Board, on its own volition, examined matters raised by the Applicant via correspondence to his congressman on 20070315, contending that he was sexually assaulted, and given the option of staying in or getting out of the Navy.  He elected to get out of the Navy and was supposedly, “given a recommendation for an honorable discharge by his commanding officer.”  On 20070330, the Applicant submitted additional correspondence to his congressman stating, “the U.S. Navy gave me a ludicrous discharge and it has branded me as something that I am not:  homosexual and dishonorable.”  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 issues.  There is no evidence in the record, nor has the Applicant produced any evidence, to support his contentions noted above.  The Applicant did not refute the narrative reason of misconduct in his petition to NDRB; neither did he request an upgrade to an honorable discharge.  The evidence contained in Applicant’s service record indicates that the Applicant was punished at NJP on 19970529, for violation of UCMJ, Article 91, insubordinate conduct toward a petty officer by using vulgar and/or obscene language.  He was given a retention warning on 19970530, and was sent to NJP again on 19980714, for violations of Articles 90, 91, 92, 107, and 134 of the UCMJ and awarded punishment.  When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  An under other than honorable discharge 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 Applicant’s service was marred by the retention warning and two NJP proceedings for violations of Articles 90, 91, 92, 107, and 134 of the UCMJ.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, 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 of his characterization of service.  The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted.  There is no evidence of impropriety, inequity or procedural irregularities in the Applicant's discharge.  The Applicant's misconduct is clearly documented.  Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.

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.  The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package.  After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, and evidence submitted by the Applicant, the Board found that 

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

	  “02  10  11”
	  “00  08  21”
	  “UNDER OTHER THAN HONORBALE CONDITIONS”
	  “MISCONDUCT”

The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate. 

Summary of Service

Prior Service:
Inactive: NONE			Active:   
Period of Service Under Review:
Date of Enlistment: 19941223		Years Contracted:  	Date of Discharge:  19980724
Length of Service:  Active:  02  Yrs  10  Mths  11  Dys	Inactive:  00  Yrs  08  Mths  21  Dys
Lost Time:  Days UA:    Days Confined:  
Education Level:  	Age at Enlistment:  	AFQT:  31	Highest Rank/Rate:  AN
Evaluation marks (# of occasions):	Performance:  N/A	Behavior:  N/A	 OTA:  N/A 
Awards and Decorations (per DD 214):  NATIONAL DEFENSE SERVICE MEDAL, SEA SERVICE DEPLOYMENT RIBBON, ARMED FORCES SERVICE MEDAL, ARMED FORCES EXPEDITIONARY MEDAL

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

19950914:	Applicant to active duty for 3 years.

19970529:	NJP -- Viol UCMJ Art. 91 - Insubordinate conduct toward a petty officer by using vulgar and/or obscene language.
	Awarded - FOP ($505.05) for (1month); RIR (E-1); Restr for (45 days); Extra duties (45 days).  Restr for 15 days suspended.  RIR suspended for 6 months.

19970530:	Retention Warning for insubordinate conduct towards a petty officer.

19980714:	NJP -- Viol UCMJ Art. 90 - Willfully disobeying superior commissioned officer, Art. 91 - Insubordinate conduct toward petty officer, Art. 92 - Failure to obey a lawful general regulations, Art. 107 - False official statement, Art. 134 - Dishonorably failing to pay just debts.
	Awarded - FOP ($500.00) 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):	NOT FOUND IN RECORD
Separation Authority (date):	NOT FOUND IN RECORD
              Reason for discharge directed:	
              Characterization directed:	
Date Applicant Discharged:	19980724

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 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.

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