ex-DCFA, USN
ND07-01126

Current Discharge and Applicant’s Request

Application Received:  20070807 	Characterization Received:  
Narrative Reason:  MISCELLANEOUS/GENERAL REASONS 	Authority:  MILPERSMAN 1910-162

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1. Desire to re-enlist

Decision

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

Date:  2008117		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 ().  Although not raised by the Applicant, the Board noted the following in regard to the processing of his administrative separation.  The Applicant was notified that the reason for processing was Family Advocacy Program Rehabilitation Failure.  Per regulation, this reason for discharge is rehabilitation program failure only, and normally processed under Best Interests of the Service.  Cases involving actual spouse abuse should be processed under misconduct due to commission of a serious offense.  The Applicant’s case involved actual physical abuse by slapping his wife.  Also, the Applicant’s record of service indicates 3 previous NJPs for which some of the offenses also constituted a serious offense.  Therefore, the Applicant should have also been processed for separation for misconduct – commission of a serious offense and misconduct – pattern of misconduct.  The Applicant was processed using the Administrative Discharge Board procedure.  Since he waived his board, the Separation Authority should have been a general court-martial convening authority.  Because of these errors, the Board had substantial doubt that the reason for discharge would be the same if the Applicant had been correctly processed.  Under all the circumstances, the Board determined that a change to the reason for separation was appropriate in order to most accurately address these errors.  Regarding characterization of service, the Board found no prejudice to the Applicant in light of his record of misconduct (in fact, the errors were a benefit to the Applicant) and determined that a change to honorable was not warranted.  

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)	20010820 - 20010828  		Active:   	
Period of Service Under Review:
Date of Enlistment: 20010829		Years Contracted:  ; Extension:  		Date of Discharge:  20040929
Length of Service:  03  Yrs  01  Mths  01  Dys		Lost Time:  Days UA:    Days Confined:  
Education Level:  		Age at Enlistment:  		AFQT:  87	Highest Rank/Rate:  DCFN
Evaluation marks (# of occasions):	Performance:  3.0(3)	Behavior:  3.3(3)	 	OTA:  3.24 
Awards and Decorations (per DD 214):  NDSM, CGSpecOpsServRbn, SSDR

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

20020117:	NJP -- Viol UCMJ Art. 134 – Underage drinking. 
	Awarded - FOP ($200) for (1 months); Restr for (10 days); Extra duties (10 days).

20020117:	Retention Warning for underage drinking (contributing to a minor).
	[NDRB note:  Record indicates Applicant 21 years old.  Board considered the NJP and warning record to indicate that Applicant supplied alcohol to someone who was underage.]

20030115:	NJP -- Viol UCMJ Art. 134 – 20021207, Soliciting to commit offense.
	Awarded - Restr for (20 days); Extra duties (20 days).

20040708:	NJP -- Viol UCMJ Art. 92 – Failure to obey order or regulation.
	Awarded - RIR ();Extra duties (45 days).

20040709:	Retention Warning for personal behavior, professionalism, military bearing and conduct.

20040319:	Medical Record:  Reason for visit:  Referred for safety evaluation.  Mentioned to shipmate that life is not worth living.  Referenced discovering wife had another man at house and then stole his truck.  Wife alleged to Family Advocacy (FAC) that Applicant had slapped her and engaged in other controlling behavior.
	Diagnosis:  Axis I: Partner Relational Problem; Axis II: Deferred, Dependent Traits
	Recommendation:  Low risk of harm to self and others; convincingly contracts for safety; discontinue ETOH; FAC appts arranged; Fit and suitable for full duty without restriction, further evaluation indicated; To ship, return to Everett for FAC, maintain on ship given low risk of harm to self (lower than risk of harm to wife).

20040610:	FAC Case Review Committee determined allegation of spouse physical and emotional abuse by Applicant substantiated.  Case closed as unresolved.  Applicant considered a treatment failure and not amenable for treatment.

Discharge Process

Date Notified:					20040814
Reason for Discharge:	FAMILY ADVOCACY PROGRAM REHABILITATION FAILURE
Least Favorable Characterization:	

Date Applicant Responded to Notification:		20040814
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			 
	Administrative Board			

Commanding Officer Recommendation (date):	
Separation Authority (date):	CO, TPU PUGET SOUND (20040924)
              Reason for discharge directed:	MISCELLANEOUS/GENERAL REASONS
              Characterization directed:	
Date Applicant Discharged:	20040929

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, Article 1910-164, effective 20020822, SEPERATION BY REASON OF FAMILY ADVOCACY PROGRAM (FAP) REHABILITATION FAILURE.

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 92, Failure to obey order or regulation; and 128, Assault.

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