ex-STGSR, USN
ND07-00052

Current Discharge and Applicant’s Request:

Application Received:  				20061018
	Characterization of Service:		
	Reason for Discharge:			
	Discharge Authority:			MILPERSMAN 3630600
	Duty Assignment/Command at Discharge:	FTC SAN DIEGO, CA

Applicant’s Request:	
	Characterization change to:		
	Narrative Reason change to: 		
	Review Requested:			
	Representation:				
Issues
1.  Change Re-enlistment Code.
2.  Unfair discharge characterization because of immaturity at time of offense.
3.  Post Service

Issue 1:  The Board determined that this Issue is not an issue which can form the basis for relief for the Applicant or that the Board did not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum regarding this issue. 

Decisional Issues:
Issue 2: (Equity). The Applicant contends that his problems are attributed to his immaturity.  While he may feel that this was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  When an Applicant’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  An under honorable conditions (general) discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record.  The Applicant’s conduct during the current period of service, which forms the primary basis for determining the character of his service was marred by seven counseling’s for Deficiencies, one retention warning and two nonjudicial punishments (NJP) for violations of the Uniform Code of Military Justice (UCMJ) Articles 89 and 91. Violation of UCMJ and Article 89, Disrespect toward a superior Commissioned Officer and Article 91, Insubordinate conduct toward a Petty Officer are considered serious offenses for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial.  An upgrade to honorable would be inappropriate.  Relief denied. 

Issue 3: (Equity).  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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 the 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.  Outstanding post-service conduct, to the extent that 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.  The Applicant provided two character statements and proof of secondary educational achievements as documentation of post-service accomplishments.  The Applicant's efforts need to be more encompassing than those provided.  For example, the Applicant could have produced evidence of a verifiable and continuous employment record, documentation of community service, and certification of non-involvement with civil authorities.  The Board determined that the documentation provided by the Applicant did not mitigate the misconduct that resulted in the characterization of discharge.  Relief denied. 
  
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, Service Record Entries, Medical Record Entries, Elements of Discharge and evidence submitted by the Applicant, the Board found the Applicant’s discharge proper and equitable.

Decision:
Date of Decision:					20070823     
Location of Board:				Washington D.C.
Complete Service Record:				yes
Complete Medical Record:			yes
Complete Discharge Package:			yes

Regarding propriety, the Board found the discharge:	Proper
Regarding equity, the Board found the discharge:	Equitable

By a vote of 5-0 the Characterization shall remain GENERAL, (UNDER HONORABLE CONDITIONS).	
By a vote of  the Reason for Discharge shall remain PATTERN OF MISCONDUCT

Summary of Service:
Prior Service:
Inactive: USNR (DEP)				19950525 - 19951101  
				
Period of Service Under Review:
Date of Enlistment:  				19951102
Years Contracted:  				
Date of Discharge:				19970310
Length of Service
	Active:					01  Yrs  04  Mths  09  Dys  (does not exclude lost time)
	Inactive:					00  Yrs  00  Mths  00  Dys
	Time Lost During This Period:		Days UA:    Days Confinement:  

Education Level:  				
Age at this Enlistment:  				
AFQT:  						63
Highest Rate/Rank:				STGSN

Performance Evaluation Averages (number of marks):
				Performance: N/A Behavior: N/A OTA: N/A

Awards and Decorations (as listed on the DD Form 214):  NATIONAL DEFENSE SERVICE MEDAL

Service Record Entries Related to Characterization of Service or Reason for Discharge

19961020:	Counseling:  Advised of deficiencies in performance and conduct (Poor sanitation habits and poor personal appearance.), disciplinary and discharge warning issued, necessary corrective actions explained and sources of assistance provided.

19961030:	Counseling:  Advised of deficiencies in performance and conduct (Poor professional performance.), disciplinary and discharge warning issued, necessary corrective actions explained and sources of assistance provided.

19961105:	Counseling:  Advised of deficiencies in performance and conduct (Reporting late for duty and unauthorized absence.), disciplinary and discharge warning issued, necessary corrective actions explained and sources of assistance provided.

19961108:	Counseling:  Advised of deficiencies in performance and conduct (Poor professional performance.), disciplinary and discharge warning issued, necessary corrective actions explained and sources of assistance provided.

19961109:	Counseling:  Advised of deficiencies in performance and conduct (Poor professional performance.), disciplinary and discharge warning issued, necessary corrective actions explained and sources of assistance provided.

19961213:	Counseling:  Advised of deficiencies in performance and conduct (Reporting last for duty and poor personal appearance.), disciplinary and discharge warning issued, necessary corrective actions explained and sources of assistance provided.

19970101:	NJP for violation(s) of UCMJ:
	Article 91:  Disobeying a noncommissioned petty officer on or about 19961204.
	Award:  Forfeiture of $437.00 for 2 months, restriction and extra duty for 45 days, reduction to E-1.  Forfeiture, restriction, extra duty and reduction suspended for 6 months.
	No indication of appeal in the record.

19970107:	Counseling:  Advised of deficiencies in performance and conduct (Failure to complete basic damage qualifications within 90 days.), disciplinary and discharge warning issued, necessary corrective actions explained and sources of assistance provided.

19970109:	NJP for violation(s) of UCMJ:
	Article 91 (4 specifications):  Insubordinate conduct toward a petty officer.
	Specification 1: On active duty, did threat with disrespectful language, MS1 A_ by saying to him, “Shut up, I don’t want to talk to you”.
	Specification 2: Willfully disobey a lawful order from QM1 D_ on 19961217, to wit: to straighten up a tray of cups on 19961217.
	Specification 3: Willfully disobey a lawful order from HM1 H_ on 19961204, to wit: to pull gloves on when sifting through trash.
	Specification 4: Treat with disrespectful language, HM1 H_ by saying to him, “That’s what soap and water was made for.
	Award:  Forfeiture of $437.00 for 2 months, restriction and extra duty for 45 days, reduction to E-1.  Suspended all less restriction to ship for 6 months.
	No indication of appeal in the record.

19970110:	Retention Warning:  Advised of deficiency (Insubordinate conduct toward a petty officer.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

19970205:	Counseling:  Advised of deficiencies in performance and conduct (Insubordinate/disrespectful.), disciplinary and discharge warning issued, necessary corrective actions explained and sources of assistance provided.

19970211:	Vacate suspended reduction awarded at Commanding Officer’s NJP dated 19970109 due to continued misconduct.

19970211:	NJP for violation(s) of UCMJ:
	Article 89:  On or abut 19970130, behave himself with disrespect toward referring to Ensign W_’s Divisional Policy.
	Article 117:  On or about 19970206, wrongfully use provoking words towards Sonar Technician First Class S_ B. P_.
	Award:  Forfeiture of $445.50 for 2 months, restriction for 60 days.
	No indication of appeal in the record.

Elements of Discharge:  [INVOLUNTARY]

Date Notified:					19970227
Reason for Discharge	 - 
Least Favorable Characterization Authorized:	

Date Applicant Responded to Notification:		19970211
Rights Elected at Notification:
Consult with Counsel			
Obtain Copies of Documents		
Submit Statement(s) (date)			 19970206
Administrative Board			
GCMCA Review				

Administrative Board Date:			19970217
	Findings, by preponderance of the evidence:	By   - 
	 .
						By  separation  warranted.
	Recommendation on Separation: 		By  
	Recommendation on Characterization:	By  GENERAL (UNDER HONORABLE
	CONDITIONS

Commanding Officer Recommendation (date):	
Separation Authority (date):	COMMANDING OFFICER, USS RODNEY M. DAVIS (FFG 6) (19960220)
	Reason for discharge directed:		 - 
	Characterization directed:			
Date Applicant Discharged:			19970310

Additional Documents Submitted by Applicant and Considered By Board

Total Number of Pages:				9
       
Related to Period of Service Under Review:
	From Service and/or Medical Record:		Other Records:	

Related to Other Period(s) of Service:
	From Service and/or Medical Record:		Other Records:	
       
Related to Post-Service Period:
	Employment:					Finances:	
	Health/Medical Records:				Substance Abuse:	
	Family/Personal Status:				Education:	
 	Community Service Efforts:			References:	
	Criminal Records:			

Other:
	Additional Statements From Applicant:		From Representative:	
        	Other Documentation (Describe)		      

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C, Change 14, effective 03 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.  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, Disrespect toward a superior Commissioned Officer and Article 91, Insubordinate conduct toward a Petty Officer.

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.  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