ex-SA, USN
ND07-00888

Current Discharge and Applicant’s Request

Application Received:  20070619 	Characterization Received:  
Narrative Reason:  MISCONDUCT 	Authority:  MILPERSMAN 3630600

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

Applicant’s Issues:	1.  College and better employment
			2.  Post service – married with two children, working, clean and out of trouble since out of military.

Decision

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  SECRETARIAL AUTHORITY.

Date:  20080103		Location:  Washington D.C	 Representation:  

Discussion

Issue 1:   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 .

Issue 2 ():  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.  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 no documentation in support of his post service claims of being employed, drug free, absent of civil infractions since his departure from the military and a responsible family man.  The Applicant's efforts need to be more encompassing than those provided.  For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, evidence of drug free existence, and certification of non-involvement with civil authorities.  The Board determined that the documentation provided by the Applicant did not mitigate the Applicant’s two nonjudicial punishment for violations of the UCMJ Articles 86 (unauthorized absence), 87 (missing movement), and 92 (failure to obey).  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.  A General (under honorable conditions) 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 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 in the characterization of service. 

After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned an impropriety in the discharge process.  The Board voted 5-0 that the narrative reason shall change to Secretarial Authority.

The Applicant was notified of his intended administrative discharge by reason on misconduct due to the commission of a serious offense, misconduct due to a pattern of misconduct and due to weight control and physical readiness test failure.  The Commanding Officer, USS CARTER HALL (LSD-50) chose to discharge the Applicant locally.  In his direction letter to the discharging PSD he did not designate the reason for discharge resulting in multiple clerical errors on the Applicant’s DD-214.  The summation of these errors combined with the CO’s letter to BUPERS in contradiction to the “MISCONDUCT” printed on the Applicant’s DD-214 left it impossible for the Board to determine the correct and intended reason for discharge.  Therefore the only narrative reason available to correct the obviously defective DD-214 is Secretarial Authority.  

Summary of Service

Prior Service:
Inactive: USNR (DEP)	19940824 - 19941011  		Active:   
Period of Service Under Review:
Date of Enlistment: 19941012		Years Contracted:  		Date of Discharge:  19980511
Length of Service:  03 Yrs 07 Mths 00 Dys			Lost Time:  Days UA - 30 (verifiable)  
Education Level:  	Age at Enlistment:  	AFQT:  38	Highest Rank/Rate:  SN
Evaluation marks (# of occasions):	Performance:  N/A	Behavior:  N/A	 	OTA:  N/A 
Awards and Decorations (per DD 214):  NDSM, SSDR

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

19960829:	Applicant to unauthorized absence.

19960903:	Applicant missed ship’s movement.

19960916:	Applicant missed ship’s movement.

19960929:	Applicant from unauthorized absence, surrendered (30 days).

19961003:	NJP - Viol UCMJ Article 86 (unauthorized absence, 2 specs) 30 days; Viol UCMJ Article 87 (missing movement, 2 specifications); Viol UCMJ Article 92 (failure to obey lawful order).
	Awarded - RIR (E-2); Correctional Custody Unit (30 days).

19961003:	Retention Warning for violations of UCMJ Articles 86, 92 and 87.

19970305:	Applicant unauthorized absence from 0530 until 0730 (2 hours).

19971024:	Applicant failed fourth physical readiness program failure in a 4-years period due to exceeding height/weight and body fat limits and failure of PRT.

19980430:	NJP - Viol UCMJ Art. 86 (unauthorized absence).
	Awarded - FOP ($519.00 for 1 month); RIR (E-2, suspended for 6 months).

19980508:	Commanding Officer USS CARTER HALL (LSD 50) informs Bureau of Naval Personnel of the Applicant’s discharge with a service characterization of general under honorable conditions.  Commanding Officer’s comments:  “SN C_ (Applicant) is a disciplinary burden to the U. S. Navy as evidenced by his total disregard for regulations and numerous infractions against the UCMJ.  SN C_ is militarily unsuitable for retention due to failure to achieve prescribed readiness and weight standards as required by OPNAVINST 6110.1D.  He has been enrolled in the command’s remedial program since reporting onboard and has had nutritional counseling from the ship’s medical department.  SN C_ has not made any progress towards reaching the U. S. Navy’s readiness and weight standards.”

Discharge Process

Date Notified:					19980504
Reason for Discharge:	 - 
	 - 
	
Least Favorable Characterization:	

Date Applicant Responded to Notification:		19980504
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			
	Administrative Board			
	GCMCA review				

Separation Authority (date):	COMMANDING OFFICER, USS CARTER HALL (LSD 50) (19980508)
              Reason for discharge directed:	
              Characterization directed:	
Date Applicant Discharged:	19980511

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.

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 87 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