ex-SR, USN

Current Discharge and Applicant’s Request

Application Received: 20091124
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MILPERSMAN 

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

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	19960315 - 19961002  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  19961003	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  19970702	Highest Rank/Rate:  SR
Length of Service:   Year(s)     Month(s)   03 Day(s)
Education Level:  	AFQT:  54
Evaluation Marks:	Performance:  NOB	Behavior:  1.0 (1)	OTA:  1.00

Awards and Decorations (per DD 214):	Rifle 

Period of CONF:  

NJP:  

- 19970305:	Article (Failure to obey a lawful order – underage drinking and alcohol in the barracks) 
	Article  (Assault – physical assault on a fellow sailor by striking said Sailor)
	Article 134 (Public drunkenness and disorderly conduct) 
	Awarded:   FOP   Suspended:  

- 19970509:	Article  (Absence without leave 19970410-19970507, 28 days)
	Article 92 (Failure to obey a lawful order, consuming alcoholic beverage while in a restricted status)
	Article 117 (Reproachful speech and gestures to a Chief Petty Officer), 2 specifications
	   Specification 1: Are you going to hold me while I go to the bathroom?
	   Specification 2: He is acting like a c--k sucker
	Article  (General article), 3 specifications
	   Specification 1: Drunk and disorderly conduct
	   Specification 2: Wrongfully urinating in public on the grounds near the BEQ
	   Specification 3: Breaking restriction 
	Awarded:     Suspended:  

SCM:  	SPCM:  	CC:  

Retention Warning Counseling:  

- 19970305:	For underage drinking, assault, and drunk and disorderly conduct 

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:		Rehabilitation/Treatment:		Criminal Records:	
	Personal Documentation:		Community Service:		References:	
	Department of VA letter:		Other Documentation:	
		Additional Statements:
	From Applicant:		From/To Representation:		From/To Congress member:	

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 3 October 1996 until 
11 December 1997, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - A 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.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 3 October 1996 until 12 December 1997, Article 3630605, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE

D.  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 and 128.

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

Applicant’s Issues

1.	Nondecisional issues – The Applicant is a homeless veteran seeking an upgrade in his characterization of service at discharge in order to be eligible to receive veteran benefits.
 
2.	Decisional issues – The Applicant did not identify any issues related to propriety or equity of his discharge for consideration by the NDRB.

Decision

Date:  20110211	      Location:  Washington D.C.	Representation:  

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

Discussion

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted.  In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Applicant did not identify any decisional issues related to the propriety or equity of his discharge for the NDRB’s consideration; however, the NDRB completed a thorough review of the circumstances that led to his discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety.  

The Applicant enlisted at age 20, without any waivers, for a 4-year enlistment with a 12-month extension.  He enlisted with an enlistment guarantee of Hospital Corpsman ‘A’ school.  The Applicant completed basic recruit training and was assigned to the Naval Hospital Corps School, Great Lakes at the time of his discharge.  The Applicant’s record of service includes one NAVPERS 1070/613 retention-counseling warning and two nonjudicial punishments for violations of the Uniform Code of Military Justice (UCMJ) as follows: 
•	Article 86 (Absence without leave)
•	Article 92 (Failure to obey a lawful order or regulation – 2 specifications of underage drinking of alcohol and possession of alcohol in the barracks in violation of written orders)
•	Article 117 (Provoking speech and gestures – 2 specifications toward a Chief Petty Officer)
•	Article 128 (Assault – physically striking another sailor)
•	Article 134 (General Article – 4 specifications of drunk and disorderly conduct, public urination, and breaking restriction).
On 28 May 1997, the Applicant was notified by his command that they were recommending he be separated administratively from the Naval Service with an Under Other Than Honorable Conditions characterization of service for misconduct.  In accordance with the Naval Military Personnel Manual (MILPERSMAN), the Applicant was notified of a dual basis for the separation action: Article 3630605 - Misconduct (Commission of a Serious Offense) and Article 3630600 - Misconduct (Pattern of Misconduct).  The NDRB reviewed the Applicant’s administrative discharge package to ensure the Applicant was afforded his rights in accordance with the MILPERSMAN.  When notified of administrative separation using the administrative board notification procedure, the Applicant waived his right to consult with a qualified counsel, waived his right to request a hearing before an administrative board, and chose not to submit written matters to the Separation Authority. 

: (Nondecisional) – The Applicant is a homeless veteran seeking an upgrade in his characterization of service at discharge in order to be eligible to receive veteran benefits.  There is no requirement, or law, that grants re-characterization solely on the issue of obtaining veterans benefits.  As such, this issue does not serve to provide a foundation upon which the Board can grant relief.  Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge.  

The Applicant is directed to the Addendum, specifically, the paragraph regarding the U.S. Department of Veterans Affairs (VA) who determine eligibility for post-service benefits, not the NDRB.  The VA conducts its own determination of eligibility based on individual service record reviews and input from an Applicant upon their request.  The Applicant should refer to the Veterans Administration website (http://www1.va.gov/opa/Is1/1.asp) for additional assistance.  Alternately, the Applicant may call 1-877-222-8387 for VA assistance.  

:  (Decisional) ()  .  The Applicant did not identify any issues related to propriety or equity of his discharge for consideration by the NDRB.  However, the NDRB completed a thorough review of the circumstances that led to his discharge, and the discharge process, to ensure the discharge met the pertinent standards of equity and propriety.  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 provided no documentation to the board to rebut the government’s presumption of regularity.

Whenever a Sailor is involved in misconduct, as described in Articles 3630605 and 3630600 of the MILPERSMAN, commanders are directed to process the Sailor for separation, unless rehabilitation and retention are warranted.  The characterization of service for Misconduct normally shall be under other than honorable conditions, but characterization as General (Under Honorable Conditions) may be warranted in some circumstances.  Moreover, despite a Sailor’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Naval Service in order to maintain proper order and discipline.  The charge specified against the Applicant – violation of Article 92 and 128 of the UCMJ – are serious offenses, punishable by punitive discharge and confinement, if adjudicated by a special or general court-martial.  The Applicant’s command opted not to pursue the punitive discharge for the violations of the UCMJ, instead choosing the more lenient administrative discharge process to address the Applicant’s misconduct.  

In regards to propriety, the Applicant’s non-judicial punishments, coupled with the Page 13 retention counseling-warning issued between the misconduct events, properly satisfied the requirements established for separation based on a demonstrated pattern of misconduct pursuant to Article 3630600 of the MILPERSMAN.  Additionally, the conviction for violation of Article 92 and 128 of the UCMJ satisfied the separation requirements established for separation based on Misconduct (Commission of Serious Offense) pursuant to Article 3630605 of the MILPERSMAN.  The Separation Authority concurred with the recommendation of the Commanding Officer and directed that the Applicant be discharged.  The Separation Authority determined that the preponderance of the evidence supported both basis for discharge and that separation from the Naval Service was warranted; however, he directed that the primary basis for separation on the Form DD-214 be Misconduct - Pattern of Misconduct.  The Separation Authority further directed that the Applicant be discharged with an Under Other Than Honorable Conditions characterization of his service and that he receive an RE-4 reenlistment code (not recommended for reenlistment).  The NDRB found no issue of impropriety; as such, an upgrade in characterization of service or change to the narrative reason for separation based on propriety would be inappropriate.  No relief provided.

Characterization of service is founded on the recognition of a Sailor’s performance and conduct, and is not necessarily dependent upon the narrative reason for separation.  When the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel, it is appropriate to characterize that service under Honorable conditions.  A General (Under Honorable Conditions) discharge is appropriate if the member’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance outweigh the positive aspects of the member’s military record.  An Under Other Than Honorable Conditions discharge 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 NDRB determined that the Applicant’s conduct, which forms the primary basis for determining the characterization of his service, did reflect conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service.  As such, the awarded characterization of service as, issued, was equitable and was consistent with the characterization of discharge given others in similar circumstances.  The NDRB determined that the characterization of service at discharge was appropriate as issued and that an upgrade would be inappropriate. 

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, and discharge process, the Board found   Therefore, the awarded characterization of service shall   and the narrative reason for separation shall remain .  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of  discharge.  The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews and Post-Service Conduct.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe 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:  After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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.  There are veterans organizations such as the American Legion and the Disabled American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their 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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB.  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 NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the NDRB’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 BCNR can make changes to reenlistment codes.  Additionally, the NDRB 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, 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 BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct:  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  Outstanding post-service conduct, 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, is considered during Board reviews.  Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle.   The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate  in-service misconduct was an aberration and not indicative of the member’s overall character.

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 NDRB 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