ex-ENFR, USN
ND07-01068

Current Discharge and Applicant’s Request

Application Received:  20070731	Characterization Received:  
Narrative Reason:  PATTERN OF MISCONDUCT 	Authority:  MILPERSMAN 3630600

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1. Harassed by Chain of Command
			2. Command atmosphere was corrupt
			3. Asked to sign a suicidal statement for purposes of separation conditional to waiving her Administrative Board.
			4. Post Service

Decision

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

Date:  20080117    		Location:  Washington D.C	 Representation:  

Discussion

Issues 1 –  2: ().  The Applicant implies that she was harassed by her Chain of Command and that the command atmosphere was corrupt.  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 her issue.  There is no evidence in the record, nor has the Applicant produced any credible evidence, to support the contention that the command unfairly singled her out for ridicule or discipline.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  
 
Issue 3: ().  The Applicant implies that she was asked to sign a suicidal statement for purposes of separation conditional to waiving her Administrative Board.  The Board found no indication of any separation processing due to suicidal ideations.  The record reflects that the Applicant was notified of her administrative separation proceedings by reason of misconduct for commission of a serious offense and for a pattern of misconduct.  The record also reveals that the Applicant waived her right to consult with legal counsel and waived her right for an Administrative Board.   When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  An under other than 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 service was marred by the award of one retention warning and four nonjudicial punishments (NJP) for violations of the Uniform Code of Military Justice (UCMJ), Article 86 (Unauthorized absence), Article 91 (Disrespectful in language to a superior petty officer), and Article 92 (Failure to obey an order or regulation).  Violations of UCMJ Article 91 and Article 92 are considered serious offenses for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial.  An upgrade to honorable would be inappropriate.

Issue 4: ().  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.  Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  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 her an address to her web site and her statement of the education that she is pursuing.  The Applicant's efforts need to be more encompassing.  For example, the Applicant could have produced evidence of a verifiable and continuous employment record, documentation of community service and educational pursuits.  The Board found that the Applicant's undocumented claims of post service achievements did not mitigate the circumstances that resulted in the characterization of discharge.
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)	19920806 - 19930124  		Active:   	
Period of Service Under Review:
Date of Enlistment: 19930125		Years Contracted:  ; Extension:  		Date of Discharge:  19950315
Length of Service:  02  Yrs  01  Mths  21  Dys	Lost Time:  Days UA:  1  Days Confined:  
Education Level:  	Age at Enlistment:  	AFQT:  76	Highest Rank/Rate:  EMFA
Evaluation marks (# of occasions):	Performance:  N/A	Behavior:  N/A	 	OTA:  N/A 
Awards and Decorations (per DD 214):  NDSM, BATTLE “E” (2), SSDR, SS

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

19940616:	NJP -- Viol UCMJ Art. 86 – (2 Specs), UA from place of duty from 1330, 19940526 until 0900, 19940527; UA from unit 0730, 19940530 until 1219, 19940531, viol UCMJ Art. 92 – Disobeyed a lawful order from a superior petty officer.
	Awarded - FOP ($200.00) for (2 months); RIR (E-1); Restr for (15 days); Extra duties (15 days), oral reprimand.

19940819:	NJP -- Viol UCMJ Art. 86 – UA from appointed place duty from 0100-1900, 19940711, viol UCMJ Art. 92 – Disobeyed a lawful order.
	Awarded - Restr for (45 days); Extra duties (45 days).

19940820:	Retention Warning for your Captain’s Mast on 19940818 for violation of UCMJ Article 86, UA from place of duty from 0100-1900, 19940711, and violation of UCMJ Article 92, disobeying a lawful order.  NJP awarded: 45 days restriction and extra duty.

19940908:	NJP -- Viol UCMJ Art. 86 – (5 Specs), UA from appointed place of duty on 0630, 19940819, 1800, 19940824, 0630, 19940827, 0630, 19940906, 0715, 19940906, viol UCMJ Art. 91 – (2 Specs), Disrespectful in language to a superior petty officer on 19940829, Willfully disobeyed a lawful order from a superior petty officer.
	Awarded – 3 days confinement on bread and water.

19940915:	NJP -- Viol UCMJ Art. 92 – Failure to obey a lawful general order, Article 1162, U.S. Navy Regulations, wrongfully possessing alcohol on a vessel.
	Awarded - FOP ($420.40) for (2 months); Restr for (60 days).

Discharge Process

Date Notified:					19950124
Reason for Discharge:	 - 
	 - 
Least Favorable Characterization:	
Date Applicant Responded to Notification:		19950124
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			
	Administrative Board			
	GCMCA review				

Commanding Officer Recommendation (date):	 (19950131)
Separation Authority (date):	BUPERS WASHINGTON DC (19950209)
              Reason for discharge directed:	 - 
              Characterization directed:	
Date Applicant Discharged:	19950315

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 9, effective 22 Jul 94 until 02 Oct 96), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

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, Articles 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