Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: Dodson, Debra G GySgt USMC USN DIRSECNAVCORB DC (USA)
Company: NCPB

Docket No. ND09-02468

ex-ICFA, USN

Current Discharge and Applicant’s Request
 
Application Received: 20090908
Characterization of Service Received: (per DD 214) UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge: (per DD 214) MISCONDUCT
Authority for Discharge: (per DD 214) MILPERSMAN 1910-142 [COMMISSION OF A SERIOUS OFFENSE]

Applicant’s Request:	Characterization change to:	HONORABLE
	Narrative Reason change to:	NONE REQUESTED

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	19960805 - 19961121  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  19961122	Age at Enlistment:  22
Period of Enlistment:  4 Years  NO Extension
Date of Discharge:  19990707	Highest Rank/Rate:  ICFN
Length of Service:  02 Year(s)   07  Month(s)   16 Day(s)
Education Level:  12	AFQT:  31
Evaluation Marks:	Performance:  3.0 (3)	Behavior:  2.3 (3)	OTA:  2.83

Awards and Decorations (per DD 214):	AFEM NAVY "E" NUC

Periods of CONF:  NONE

NJP:  2

- 19980903:	Article 86 (UA 1545-2215, 980824)
	Awarded: RIR RESTR EPD  Suspended:  NONE

- 19990617:	Article 86 (UA 19990505-19990601, 26 days)
	Article 87 (Missed movement on 19990505)
	Article 92(Failure to obey lawful order)
	Article 112a (Drugs - marijuana)
	Awarded: RIR RESTR EPD  Suspended:  NONE

SCM:  NONE	SPCM:  NONE	CC:  NONE

Retention Warning Counseling:  NONE

NDRB Documentary Review Conducted (date):	20010907
NDRB Documentary Review Docket Number:	ND01-00461
NDRB Documentary Review Findings:		Proper as issued and that no change is warranted.

Administrative Corrections to the Applicant’s DD 214

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

	Block 29, Dates of Time Lost During This Period, should read “990505-990601”

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 18, effective 12 December 1997 until 29 March 2000, 
Article 1910-142, Separation 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 87, 92, 112a.

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

Applicant’s Issues

1.	Applicant contends personal issues and a stressful work environment led to her misconduct.
2.	Applicant contends her post-service conduct and achievements better reflect her true character.

Decision

Date:  20101027	PERSONAL APPEARANCE HEARING
Location:  Washington D.C.	Representation:  Disabled American Veterans

By a vote of 5-0 the Characterization shall remain UNDER OTHER THAN HONORABLE CONDITIONS.
By a vote of 5-0 the Narrative Reason shall remain MISCONDUCT.

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 two decisional issues for the Board’s consideration.  The Board conducted a thorough review of the circumstances that led to her discharge and the discharge process to ensure her discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service did not contain any NAVPERS 1070/613 (Page 13) warnings or counselings, but did reflect two nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, 2 specifications, 1545-2215 on 24 Aug and from 5 May-1 Jun 2001), Article 87 (Missing movement of the USS Sacramento on 5 May 1999), Article 92 (Failure to obey order, regulation, specifics NFIR), and Article 112a (Wrongful use, possession, etc of controlled substance, marijuana).  The record also reflected the Applicant had confessed to illegal use of marijuana twice in 1994 prior to enlisting in the Navy.  Based on the offenses committed by the Applicant, her command administratively processed her for separation; violation of UCMJ Article 112a makes this a mandatory requirement.  When notified of administrative separation processing on 23 Jun 1999 using the administrative board procedure, the Applicant waived her rights to consult with a qualified counsel, submit a written statement, and request an administrative separation board.

Issue 1:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends personal issues and a stressful work environment led to her misconduct.  While speaking at her personal appearance hearing, the Applicant referred to a troubled home life prior to enlisting in the Navy.  The Applicant stated she ran away from her family and the environment at home to join the Navy.  The Applicant further stated that she performed well in boot camp and initial training where she had been placed in key leadership billets.  She then checked into her first command where she received the full support and mentorship from both her work section and the interior communications division, which allowed her to devote much of her non-duty time to studying in preparation for striking for the IC rating and advancement to petty officer third class (E-4).  After missing the advancement cutoff score by less than one point, she noted several other Sailors who received lower scores on the advancement exam had been promoted.  At this point, the Applicant stated she became suspect of her chain of command and began to perceive a hostile work environment where a predominantly male group was keeping her from being promoted.  When questioned at the personal appearance hearing, the Applicant was unaware that advancement was based on a sliding cutoff scale depending on the specific rating as determined by the needs of the Navy in each rating.  As such, selection for advancement in some ratings occurs faster and with lower scoring requirements than others.

The Applicant stated she pursued a transfer to another ship where she felt she could get another start under a new chain of command.  She referred to a pending personnel swap with a Sailor on another vessel and her belief that her command obstructed this transfer.  There is no evidence to support this claim.  Furthermore, the Board felt that is was highly unlikely that the Navy would undergo the expense of a personnel swap/PCS transfer of a Sailor who had not completed her first tour of duty in the present command.  More importantly, there is no evidence in the record, nor did the Applicant provide any evidence during the hearing to indicate she attempted to discuss these perceptions or other personal issues she had with the chain of command or utilize the services available for service members from the Navy Chaplain, Medical Officer, or on-base counseling services.  The Board felt the combination of previous life experiences and the misperceptions of her chain of command affected her decision making and subsequent choices to run away, which led to a series of misconduct that included unauthorized absence (Article 86), missing ship’s movement (Article 87), failure to obey a lawful order (Article 92), and the use of illegal drugs, marijuana (Article 112a).

Violation of Articles 86, 92, and 112a are considered serious offenses, and violation of Article 112a requires mandatory processing for administrative separation regardless of grade or time in service.  This usually results in an unfavorable characterization of discharge or, at a minimum, a punitive discharge (Bad Conduct or Dishonorable) and possible confinement up to two years if adjudicated and awarded as part of a sentence by a special or general court-martial.  The command did not pursue a punitive discharge of the Applicant but opted instead for the more lenient administrative discharge.  While in service, the Applicant had an opportunity to defend herself, but she waived her rights to do so.  While she may feel this was the underlying cause of her misconduct, the record clearly reflects her willful misconduct and demonstrated she was unfit for further service.  The NDRB determined that the Applicant's personal issues and stressful work environment were not mitigating factors in her misconduct.  After careful review of all the circumstances and the fact the Applicant did not submit any credible or substantive evidence with her application to overcome the government’s presumption of regularity in her administrative separation, the Board determined that her separation due to misconduct (commission of a serious offense) was proper and equitable.

Issue 2:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends her post-service conduct and achievements better reflect her true character.  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 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 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 documentation that included character witness statements, letters of personal reference, a Chandler-Gilbert Community College Associate in Arts degree certificate, and an acceptance letter from Arizona State University.  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 to determine if post-service conduct mitigates the reason for the characterization of discharge.

The Board lauds the Applicant’s post-service achievements to include earning an associate in arts degree, pursuit of a bachelors degree, volunteering to participate in youth outreach in her church, and the launch and management of a private business enterprise.  Though commendable, the post-service achievements do not mitigate nor outweigh the fact that the Applicant’s in-service misconduct was willful and a significant departure from the high moral standards and conduct expected of all Sailors.  

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

The Applicant has exhausted her opportunities before the NDRB but may petition the Board for Correction of Naval Records, 2 Navy Annex, Washington, DC 20370-5100 for further review. 

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

Key:	NFIR - Not found in record 	UA - Unauthorized absence	NJP - Nonjudicial punishment	SCM - Summary court-martial
	SPCM - Special court-martial	FOP - Forfeiture of pay	RIR - Reduction in rank	EPD - Extra duties
	CONF - Confinement	CC - Civilian conviction	CCU - Correctional Custody Unit	BW - Confinement on bread and water

Key:	NFIR - Not Found In Record 	UA – Unauthorized absence	NJP – Nonjudicial punishment	SCM – Summary court-martial	
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties 
	CONF – Confinement		B&W – Confinement on bread and water