ex-AN, USN
ND07-00828

Current Discharge and Applicant’s Request

Application Received:  20070522 	Characterization Received:  
Narrative Reason:  MISCONDUCT 	Authority:  MILPERSMAN 1910-142

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

Applicant’s Issues:	1.  Request medical treatment for leg injury received on active duty Sep 03 .
			2.  Reenlistment.

Decision

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

Date:  20071220		Location:  Washington D.C	 Representation:  

Discussion

Issues 1 and 2:   either  which the Board cannot form the basis of relief for the Applicant, or  the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum regarding .

Regulations permit relief on equitable grounds if the Applicant’s characterization of service is inconsistent with the standards of discipline of the naval service.  Based upon the record, nothing indicates that the Applicant’s characterization was in any way inconsistent with the standards of discipline in the United States Navy.  A general (under 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 Applicant’s service was marred by non-judicial punishment for violations of UCMJ Articles 86 (unauthorized absence, 5 specifications), 89 (disrespect), 91 (insubordinate conduct, 2 specifications), and 92 (failure to obey).  Violations of UCMJ Articles 89, 91 and 92 are considered a serious offense and therefore form the basis for the Applicants administrative discharge based upon misconduct by the commission of a serious offense.  For the information of the Applicant, violations of UCMJ Articles 89, 91, and 92 carry a maximum penalty of a dishonorable discharge and up to 2 years of imprisonment for each specification if adjudicated by a court martial.  The Applicant’s conduct, which forms the primary basis for determining the character 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 the characterization of his service. 

In reviewing discharges, the Board presumes regularity in the conduct of governmental 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 that 

Summary of Service

Prior Service:
Inactive: USNR (DEP) 20030710 - 20030729  		
Period of Service Under Review:
Date of Enlistment: 20030730	Years Contracted:  4;		Date of Discharge:  20050317
Length of Service: 01 Yrs 07 Mths 17 Dys			Lost Time:  Unable to determine
Education Level:  GED	Age at Enlistment:  21	AFQT:  59	Highest Rank/Rate:  AA
Evaluation marks (# of occasions):	Performance:  NA		Behavior: NA		 OTA: NA
Awards and Decorations (per DD 214):  NDSM

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

20031129:	Applicant reported for duty aboard USS DWIGHT D EISENHOWER (CVN 69).

20040518:	Applicant to unauthorized absence at 0700.

20040520:	Applicant from unauthorized absence at 0700 (2 days, surrendered).

20040611:	Applicant reported to TPU Norfolk.

20040706:	Applicant reported for duty to Helicopter Combat Support Squadron Six, Norfolk, VA.

20050126:	NJP - Viol UCMJ Article 86 (unauthorized absence, 5 specifications), Article 89 (disrespect), Article 91 (insubordinate conduct, 2 specifications), and Article 92 (failure to obey).
	
20050202:	Commanding Officer, Helicopter Combat Support Squadron Six informed Commander Navy Personnel Command of the Applicant’s discharge by reason of misconduct due to the commission of a serious offense.  Commanding Officer’s comments, “AR A_ (Applicant) was administratively separated from military service due to commission of a serious offense with an honorable discharge.  Since reporting to HC-6 earlier this year, AR A_ has been a continuous discipline problem and administrative burden.  He does not possess any qualities that would make him an asset to the HC-6 or the Navy.”

20050302:	Commanding Officer, Helicopter Combat Support Squadron Six directs PSD Sewells Point to discharge AR A_ by reason of misconduct due to the commission of a serious offense with a characterization of service as general (under honorable conditions).  

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			NOT FOUND IN RECORD
	Obtain Copies of Documents		NOT FOUND IN RECORD
	Submit Statement(s) (date)			NOT FOUND IN RECORD
	Administrative Board			NOT FOUND IN RECORD
	GCMCA review				NOT FOUND IN RECORD

Administrative Board Date:	Code on DD-214 indicates board waived

Separation Authority (date):	Commanding Officer, Helicopter Combat Support Squadron Six (20050302)
              Reason for discharge directed:	 - 
              Characterization directed:	
Date Applicant Discharged:	20050317

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), re-issued October 2002, effective 22 Aug 02 until 25 April 2005, Article 1910-142 [formerly 3630605], 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 violations of UCMJ, Articles 89, 91 and 92.

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