ex-FR, USNR

Current Discharge and Applicant’s Request

Application Received: 20091130
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MILPERSMAN 3630600 [PATTERN OF MISCONDUCT]

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

Summary of Service

Prior Service:
Inactive: None		Active:	

Period of Service Under Review:
Date of Current Enlistment:  19930925	Age at Enlistment:  
Period of Enlistment:   Years (2 Years Active Duty / 6 Years Drilling Reserve)
Date of Discharge:  19950718	Highest Rank/Rate:  FA
Length of Service:
	Inactive:	 Year(s)     Month(s)   16 Day(s)
	Active	 Year(s)     Month(s)   24 Day(s)
Education Level:  	AFQT:  34
Evaluation Marks:	Performance:  2.6 (2)	Behavior:  2.7 (2)	OTA:  2.80

Awards and Decorations (per DD 214): ,  (x2), 

Periods of UA:  UA:  0715-1500, 19941023; 0715-1400, 19941024 
Periods of CONF:  

NJP:  

- 19940218:	Article  (Provoking speeches or gestures)
	Awarded:    Suspended:  

- 19941118:	Article  (UA 19941103-19941107, 4 days)
	Article  (Failure to obey order or regulation)
	Awarded:    Suspended:  

- 19950606:	Article  (UA)
	Article  (Failure to obey other lawful order)
	Awarded:    Suspended:  

- 19950707:	Article  (Disrespect toward a superior commissioned officer)
	Article  (UA), 2 specifications
	Awarded:    Suspended:  

SCM:  	SPCM:  	CC:  

Retention Warning Counseling:  

- 19940219:	For provoking speeches or gestures.

- 19941118:	For unauthorized absence and failure to obey order or regulation.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

	  “MILPERSMAN 3630600”

The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate.

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 9, effective 22 July 1994 until 2 October 1996, 
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.  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 89 and Article 92.

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

Applicant’s Issues

1.	Decisional issues: The Applicant contends that he was inequitably separated from the Naval Service due to personal family problems, undiagnosed psychological issues, and that the command was out to get him.  Applicant seeks an upgrade in characterization of service at discharge to General (Under Honorable Conditions).

Decision

Date:  20110224		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 identified decisional issues related to the equity of his discharge for the NDRB’s consideration.  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 both propriety and equity.  

The Applicant enlisted at age 21, without any waivers, for a 2-year active duty enlistment and a 6 year drilling naval reserve contract.  He enlisted as a contract E-2 (1 year of post High School educational credit) with an enlistment guarantee of Fireman Apprentice ‘A’ school.  The Applicant completed basic recruit training and was assigned to the USS NICHOLSON (DD-982), Naval Station, Charleston, South Carolina where he remained until the time of his discharge.   

The Applicant’s record of service includes two NAVPERS 1070/613 retention-counseling warnings and four nonjudicial punishments for violations of the Uniform Code of Military Justice (UCMJ) as follows: 
•	Article 86 (Absence without leave – 4 specifications; specifically, unauthorized absence in that the Applicant absented himself from his appointed place of duty without authority and on other occasions did fail to go to his appointed place of duty)
•	Article 89 (disrespect to a superior commissioned officer)   
•	Article 92 (2 specifications of failure to obey a lawful order or regulation) 
•	Article 117 (provoking speech and gestures – toward a Chief Petty Officer).

On 12 July 1995, 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 separation: 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 exercised 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.  The Command forwarded their recommendation for separation under other than honorable conditions to the Separation Authority on 12 July 1995.  On 17 July 1995, the Separation Authority directed the Applicant be discharged from the Navy pursuant to the MILPERSMAN; he directed the primary basis for separation by Misconduct (Pattern of Misconduct) in accordance with Article 3630600.  He further directed that the Applicant receive an Under Other Than Honorable Conditions characterization of his service at discharge based on the specified misconduct and that he was not recommended for re-enlistment.  The Applicant was discharged on 18 July 1995.

:  (Decisional) ()  .  The Applicant contends that he was inequitably separated from the Naval Service due to personal family problems, undiagnosed psychological issues, and that the command was out to get him.  The Applicant seeks an upgrade in the characterization of his service at discharge to General (Under Honorable Conditions).  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 any regularity in regards to his discharge process.

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 Articles 89 and 92 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 punitive actions for the violations of the UCMJ, instead choosing the more lenient non-judicial punishment - and eventually the 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-warnings 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 Articles 89 and 92 of the UCMJ satisfied the separation requirements established for separation based on Misconduct (Commission of a Serious Offense) pursuant to Article 3630605 of the MILPERSMAN.  The Separation Authority concurred with the recommendation of the Commanding Officer and directed the Applicant be discharged, having no rehabilitative potential and having violated a Page 13 retention counseling warning.  The Separation Authority determined that the preponderance of the evidence supported both bases 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 acceptable 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 Applicant contends his disciplinary problems were the result of stress caused by his wife’s prostitution and drug habit and his requirement to care for her three children in her routine absence.  The Applicant contends the characterization of his discharge should be upgraded because he suffered many setbacks due to persecution by shipmates and unauthorized absences that could not be helped due to his need to remain home caring for the children of his wife.  The NDRB recognizes that serving in the military is challenging.  However, most service members serve honorably and therefore earn their honorable discharges.  In fairness to those service members, commanders and separation authorities are tasked to ensure that Sailors receive no higher characterization than is due based on their service.  There is no evidence in the record, nor did the Applicant provide any documentation, to indicate he attempted to use the numerous services available for service members who undergo personal problems during their enlistment such as the Navy Chaplain, Medical or Mental Health professionals, Navy Relief Society, Family Advocacy Programs, or even the Red Cross.  The NDRB determined the Applicant’s personal problems were not mitigating factors in his overall misconduct and that the Applicant’s record of service demonstrated acts or omissions that constituted a significant departure from the conduct expected of member of the Naval Service; as such, relief is denied.

The Applicant contends he was persecuted by his chain of command, which resulted in his Under Other Than Honorable Conditions discharge.  The record of service contained no evidence of any wrongdoing by the Applicant’s commanding officer or anyone else in the chain of command or discharge process.  The Applicant’s record of service reflects a well-documented pattern of misconduct and the commission of serious offenses, which warranted separation.  During the separation proceedings, the Applicant exercised his right to consult with qualified legal counsel, but chose not to exercise his right to request a hearing before an Administrative Discharge Board or submit any rebuttal to the Separation Authority.  If the Applicant believed that there were mitigating circumstances or issues of impartiality, it was his obligation to contest the actions at the time they were made and present his case for consideration.  The Applicant was afforded an opportunity to elect an administrative board hearing to present his case; he chose not to exercise that right.  The NDRB presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary.  The NDRB discerned no impropriety or inequity and determined the Applicant’s discharge was proper and equitable as issued.  Relief denied.  

The Applicant contends that he suffered from undiagnosed psychological issues that were mitigating circumstances to his misconduct.  The Applicant provided a diagnosis of bi-polar disorder, manic, from a civilian hospital provider dated July 2009 as evidence of his claim.  The Applicant’s in-service medical records that were available to the NDRB indicate that appropriately credentialed mental health care providers evaluated and treated the Applicant on numerous occasions preceding his discharge.  The diagnosis from the attending medical officers was stress-related symptoms resultant from marital difficulty, financial difficulties, and pending disciplinary actions and that the symptoms noticeably improved, based on the Applicant’s provided history, when removed from the stressful environment.  The Applicant was alert, fully oriented, and was coherent, articulated, and goal directed throughout the numerous counseling sessions.  The records indicated that he presented no suicidal or homicidal indications and that there was no indication of psychotic features or symptoms of depression.  The Applicant was afforded continued follow-up care, was provided anger management classes, and was referred to the family services center to seek assistance with his financial and personal relationship stressors.  The NDRB determined that the Applicant’s post-service mental health diagnosis was not mitigation for his in-service misconduct; as such, relief based on inequity is denied.   

The NDRB determined that the Applicant’s conduct, which forms the primary basis for determining the characterization of his service, evidenced 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; accordingly, no relief is provided. 

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, and post-service medical documents, and the discharge process, the Board found that the discharge was both proper and equitable.  Therefore, the awarded characterization of service shall  UNDER OTHER THAN HONORABLE CONDITIONS and the narrative reason for separation shall remain .

Since fifteen years have elapsed since the date of his discharge, the Applicant is not eligible for a personal appearance hearing.  The Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for any further reviews or issues.

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