ex-FR, USN

Current Discharge and Applicant’s Request

Application Received:  20080520
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MILPERSMAN 3630600

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

Summary of Service

Prior Service:
Inactive: USNR (DEP)	19930916 - 19940802  		Active:   

Period of Service Under Review:
Date of Enlistment: 19940803	Period of Enlistment:  Years   Extension	Date of Discharge: 19960823
Length of Service:  Years     Months   07 Days	Education Level:     Age at Enlistment: 	
Highest Rank/Rate: 	FA    AFQT: 54
 Evaluation Marks: Performance:  NFIR     Behavior: NFIR   OTA: 3.2 (found in NAVPERS 10/70 08231996)
Awards and Decorations (per DD 214):	NDSM

NJP:  
19950615:  Article 80 (Attempt to unlawfully enter Naval Station, Norfolk on 19950427)
                   Article 92 (Disobey a lawful order, to wit: COMNAVBASENORVA/SOPA {ADMIN} HAMPINST      
                                     5400.1F by wrongfully drinking underage on 19950427)
                   Awarded:       Suspended:  

19960104:  Article 91 (Disrespectful in language towards MS1 S. on or about 19951120)
                   Article 92 (Failure to obey a lawful order issued by the Commanding Officer, USS EMORY S. LAND, to  
                                     wit: USS EMORY S LAND INST 3120.2C-wrongfully wearing civilian clothes on mess deck 
                                     during breakfast meal)
                  Awarded:      Suspended:  

19960620:  Article 86 (Unauthorized absence from 19960604 until apprehended 19960617)
                   Article 92 (Fail to obey a lawful order, wrongfully consuming alcohol while under the age 21 and no military  
                                     ID card in his possession)
                   Article 107 (False official statement about his age)
                  Article 134 (Discredit to the Armed Forces by being drunk)
                  Awarded:       Suspended:  

SCM:  

SPCM:  

CC:  
19960321:  Offense: Altered operator's license by changing the birthdate.
                   Sentence: $50 fine plus court costs.

Retention Warnings:  
19950622:  For violation UCMJ Article 92-disobey a lawful order by possession drinking underage; and Article 80
                   Attempting to commit unlawful entry onto Naval Station, Norfolk, VA.

Types of Documents Submitted/reviewed

Related to Military Service:	
                                         DD 214:  	 Service/Medical Record:  		  Other Records:  

Related to Post-Service Period:	
	Employment:			Finances:			Education/Training:	
	Health/Medical Records:		Substance Abuse:			Criminal Records:	
	Family/Personal Status:		Community Service:		References:		
              Additional Statements:
                             From Applicant:  	From Representation:         	From Congress member:    

              Other Documentation (Describe):  

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective 22 July 1994 until 2 October 1996, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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 91 - Disrespectful language, Article 92- Failure to obey a lawful order, Article 107 – False official statement and Article 134- Discredit to the Armed Forces by being drunk.

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

1.  In service performance was faithful and honorable.
Decision

Date:  20081009    	Location:  Washington D.C.	Representation:  

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

Discussion

:  ()  .   The Applicant contends his discharge should be upgraded to “Honorable” based on his overall service which was faithful and honorable.  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.  The Applicant’s service was marred by one retention warning, three NJP’s for violations of the Uniform Code of Military Justice (UCMJ):  Article 80 (Attempt to unlawfully enter Naval Station Norfolk); Article 86 (UA); Article 91 (Disrespectful language); Article 92 (Failure to obey a lawful order); Article 107 (False official statement); and Article 134 (Discredit to the Armed Forces by being drunk), and one civilian conviction for altering an operators license by changing his birth date.  Violations of the UCMJ Articles 91, 92, 107 and 134 are considered serious offenses for which a punitive discharge and confinement are authorized if adjudicated and awarded as part of a sentence by a Special or General Court-Martial.  The command did not pursue a punitive discharge but opted for an administrative discharge. 

The Applicant has requested an upgrade in his discharge characterization to “Honorable”.  For the edification of the Applicant, an “Honorable” characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate.  A discharge of “Under Other Than Honorable Conditions” is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the naval service.  The Applicant’s service record, which forms the primary basis for determining the character of his service, reflects his misconduct, and fall below that required for an “Honorable” characterization of service.  The Applicant’s argument that he served faithfully and honorably is contradicted by the evidence of record as previously discussed.  Based on the frequency and seriousness of the offenses committed and the lack of mitigating circumstances, the Board determined an upgrade to honorable would be inappropriate.  

After a thorough review of the available evidence, to include the Applicant’s Summary of Service,   Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found 

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 or is referred to a court martial 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 other medical related reasons.  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 special 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.  The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

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