ex-FR, USN

Current Discharge and Applicant’s Request

Application Received: 20110610
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:  19941128	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  19960408	Highest Rank/Rate:  FN
Length of Service:
	Inactive:	 Year(s)     Month(s)   23 Day(s)
	Active	 Year(s)     Month(s)   18 Day(s)
Education Level:  	AFQT:  65
Evaluation Marks:	Performance:  NFIR (1)	Behavior:  NFIR (1)	OTA:  1.67 (1)

Awards and Decorations (per DD 214):	 

Periods of UA/CONF:	UA: 19950916 (1 day) 			CONF:  
			UA: 19951103-19951109 (7 days)

NJP:  
- 19950727:	Article  (Absence without leave)
	Article  (Missing movement)
	Awarded:  EDP  (to E-2)   Suspended:    (suspend 6 months)
	[* Suspension vacated 19951128 due to further misconduct (Commanding Officer’s msg, 19960312).]

- 19951205:	Article  (Absence without leave)
	Article 87 (Missing movement)
	Article  (Larceny and wrongful appropriation)
	Awarded:    (to E-1)   Suspended:    (suspend 6 months) 
	[* Suspension vacated 19960301 due to further misconduct (Commanding Officer’s msg, 19960312).]

- 19960301:	Article  (Wrongful use, possession, etc., of a controlled substance, 2 specifications)
		Specification 1: Wrongful use of cocaine, o/o 19960228
		Specification 2: Wrongful use of marijuana, o/o 19960228
	Awarded:  FOP   Suspended:  

SCM:  	SPCM:  	CC:  

Retention Warning Counseling:  

- 19950727:	NFIR  [Date extracted from Commanding Officer’s message dated 19960312.]

Administrative Corrections to the Applicant’s DD 214

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

	 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read:  “NATIONAL DEFENSE SERVICE MEDAL, ARMED FORCES EXPEDITIONARY MEDAL, LETTER OF COMMENDATION”
	  “PATTERN OF MISCONDUCT”
	  “95SEP16, 95NOV03 TO 95NOV09”

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.

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

Applicant’s Issues

1.	Applicant contends his discharge was improper/inequitable based on the advice given by his recruiter regarding pre-service drug use, and lack of guidance, legal counsel, and misinformation given regarding his proposed administrative separation. 
2.	Applicant contends his post-service achievements warrant consideration for a discharge upgrade.  

Decision

Date:  20120822		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 Board completed a thorough review of the circumstances that led to his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included  NAVPERS 1070/613 (Page 13) retention warning and  nonjudicial punishments (NJPs) for  of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, 2 specifications: 0500 on 16 September to 2245 on 17 September 1995 and 10-11 October, 30-31 October, and 0715 on 3 November to 2100 on 10 November 1995, 7 days), Article 87 (Missing movement, 2 specifications), Article 112a (Wrongful use, possession, etc of a controlled substance, 2 specifications, on or about 21 February 1996: cocaine and marijuana, as evidenced by NAVDRUGLAB report 28 February 1996), and Article 121 (Larceny and wrongful appropriation).  The record also revealed the Applicant admitted to illegal use of marijuana one time prior to enlisting and that he obtained an enlistment waiver for a serious misdemeanor civil offense he committed prior to entering the Navy.  Based on the serious and repeated offenses committed by the Applicant, his command processed him for administrative separation from the Navy.  Violations of UCMJ Article 112a require mandatory processing for administrative separation per the Naval Military Personnel Manual.

On 6 February 1996, the Applicant was initially notified of administrative separation processing due to Fraudulent Enlistment for failing to disclose involvement with civil authorities during enlistment accession processing while aboard the USS Anchorage.  The Applicant was transferred from the USS Anchorage to the Transient Personnel Unit (TPU) San Diego on or about 15 February 1996.  Meanwhile, on 8 March 1996, the Applicant was re-notified of administrative separation processing (for Misconduct - Pattern of Misconduct, Misconduct - Commission of a Serious Offense, and Misconduct - Drug Abuse) by the Commanding Officer, TPU San Diego.  When notified of administrative separation processing using the  procedure, the Applicant exercised his right to consult with a qualified counsel, but waived his rights to submit a written statement and request an administrative separation board.  On 12 March 1996, the Commanding Officer, TPU San Diego endorsed the Applicant’s administrative separation package and forwarded to the Chief of Naval Personnel for disposition.  His endorsement stated “(The Applicant’s) wrongful use of marijuana and cocaine precludes his further retention in the Naval Service.  I recommend that (the Applicant) be separated with an Other Than Honorable discharge by reason of misconduct,”  On 26 March 1996, the Chief of Naval Personnel directed that the Applicant be separated with an Under Other Than Honorable Conditions discharge due to Pattern of Misconduct.  The Applicant was discharged on 8 April 1996.

:  (Decisional) ()  .  The Applicant contends his discharge was improper/inequitable based on the advice given by his recruiter regarding pre-service drug use, and lack of guidance, legal counsel, and misinformation given regarding his proposed administrative separation.  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 issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that the recruiter misled him through the recruitment process or that he was not provided the proper guidance or counsel during the separation process.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  However, even if the Applicant could show misrepresentations in the 

recruitment process, such misrepresentations would neither amount to a justification nor to a defense for the Applicant’s own misconduct while in service.  Additionally, the Applicant’s frequent and serious instances of misconduct while in service warranted a discharge Under Other Than Honorable Conditions.  The NDRB determined that the separation processing was proper and that the Applicant was afforded all rights due to him.  Relief denied.

:  (Decisional) ()  .  The Applicant contends his post-service achievements warrant consideration for a discharge upgrade.  The NDRB considers post-service conduct in order to determine if the misconduct committed during active duty was indicative of the Applicant’s character or an aberration.  However, there is no law or regulation that provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  The Applicant provided a personal statement as evidence of post-service accomplishments.  Although his efforts to improve his life are noteworthy, he failed to provide adequate documentation and evidence on his behalf to support a thorough post-service conduct review.  He could have submitted documentation as specified in the Post-Service Conduct paragraph in the Addendum, however, completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis.  Without any additional post-service documentary evidence, the Board determined the awarded characterization of service shall remain Under Other Than Honorable Conditions.  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, and the administrative separation process, the Board found   Therefore, the awarded characterization of service shall   and the narrative reason for separation shall remain .  Since 15 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, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for any further reviews or issues.  Their website is http://www.donhq.navy.mil/bcnr/bcnr.htm.  The Applicant is directed to the Addendum for additional information.

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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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