ex-AGAA, USN 
ND07-01097

Current Discharge and Applicant’s Request

Application Received:  20070806 	Characterization Received:  
Narrative Reason:  PATTERN OF MISCONDUCT 	Authority:  MILPERSMAN 1910-140

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

Applicant’s Issues:	1.  Employment
			2.  Unfairly forced out of navy, i.e. Chief had it in for me.

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

:   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 Applicant contends that he was unfairly forced out of the Navy (his Chief had a grudge against him) when he wished to reenlist.  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 claim.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was improperly forced out or that his chain of command treated the Applicant unfairly in any way.  To the contrary the record contains documentation of the Applicant’s two retention warnings and four nonjudicial punishments.  Even if the Applicant could document his claim this would neither amount to a justification nor to a defense for the Applicant’s own misconduct.  The record clearly reflects his willful misconduct which demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. 

For the information of the Applicant, regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with the standards of discipline of the naval service.  Based upon the record, nothing indicates that the Applicant’s discharge 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 four nonjudicial punishments and two retention warnings for repeated violations of UCMJ Articles 86 (unauthorized absence, 3 specifications) and 92 (failure to obey, 3 specifications).  These Nonjudicial punishments form the basis for the Applicants administrative discharge based on a pattern of misconduct which is defined as two or more nonjudicial punishments during the same enlistment.  Additionally a violation of UCMJ Article 92 carries a penalty of a dishonorable discharge and up to two 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 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 in his characterization of 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) 19980818 - 19981108  	
Period of Service Under Review:
Date of Enlistment: 19981109	Years Contracted:  4; Extension:  22 months		Date of Discharge:  20040607     
Length of Service:  05 Yrs 06 Mths 29 Dys							Lost Time:  
Education Level:  	Age at Enlistment:  19	AFQT:  53	Highest Rank/Rate:  AGAN
Evaluation marks (# of occasions):	Performance:  2.7 (6)	Behavior:  3.2 (6)	 	OTA:  2.88 (6)
Awards and Decorations (per DD 214):  NDSM, SSDR (3), Overseas Service Ribbon

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

20000905:	NJP – Violations of UCMJ Articles 86 (unauthorized absence) and 92 (failure to obey) 
	Awarded - FOP ($100/month for two months); RIR (E-2); Restr (30 days); Extra duties (30 days).

20001201:	NJP – Violation of UCMJ Article 86 (unauthorized absence).
	Awarded - FOP ($200/month for two months); RIR (E-1, suspended for three months); Restr (21 days); Extra duties (21 days).

20001205:	Retention Warning for Violations of UCMJ Article 86 (unauthorized absence).

20020915:	Applicant reported for duty aboard NPMOC, Yokosuka Japan.

20040331:	NJP – Violation of UCMJ Articles 86 (unauthorized absence) and 92 (failure to obey)
	Awarded - FOP 1/2 pay per month for two months); RIR (E-3, suspended for 60 days); Extra duties (30 days).

20040331:	Retention Warning for Violations of UCMJ Articles 86 and 92.

20040507:	Suspended punishment from NJP on 20040331 vacated due to continued misconduct.

20040507:	NJP – Violation of UCMJ Article 92 (violation of a general regulation).
	Awarded - RIR (E-2).

20040514:	Commanding Officer, U. S. Naval Pacific Meteorology and Oceanography Center Yokosuka, Japan informed Commander Naval Personnel Command of the Applicant’s discharge with a characterization of service as General (under honorable conditions) by reason of misconduct by a pattern of misconduct.  Commanding Officer’s comments:  “AGAA H_ (Applicant) was notified of his separation processing.  He is awarded General Discharge with a code of GKA due to his general disregard of Naval Regulations.  His inability to progress from corrective disciplinary actions, in an environment governed by military standards and core values, warrants his administrative discharge.” 

20040607:	Applicant discharged.

Discharge Process

Date Notified:					20040511     
Reason for Discharge:	 - 
Least Favorable Characterization:	

Date Applicant Responded to Notification:		20040511
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement				 
	GCMCA review				

Separation Authority (date):	Commanding Officer, U. S. Naval Pacific Meteorology and Oceanography Center Yokosuka, Japan (20040514)
              Reason for discharge directed:	 - 
              Characterization directed:	
Date Applicant Discharged:	20040607

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 2002 until 25 April 2005, Article 1910-140 (formerly 3630600), SEPARATION 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, Article 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