Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: Roberts, James A CIV SECNAVCORB, NDRB
Company: NCPB

Docket No. ND15-01369

ex-MASR, USN

Current Discharge and Applicant’s Request

Application Received: 20150713
Characterization of Service Received:  (corrected) UNDER HONORABLE CONDITIONS (GENERAL)
Narrative Reason for Discharge:  (corrected) PATTERN OF MISCONDUCT
Reenlistment Code:  RE-4
Authority for Discharge:  (per DD 214) MILPERSMAN 1910-140 [PATTERN OF MISCONDUCT]

Applicant’s Request:	Characterization change to:	HONORABLE
	Narrative Reason change to:	REQUESTED, BUT NOT SPECIFIED

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	20080919 - 20081007  COG	Active:	NONE

Period of Service Under Review:

Date of Current Enlistment:  20081008	Age at Enlistment:  21
Period of Enlistment:  4 Years  12 MONTHS Extension 
Date of Discharge:  20100726	Highest Rank/Rate:  MA3 (FROCKED)
Length of Service:  01 Year(s)   09  Month(s)   19 Day(s)
Education Level:  14	AFQT:  77
Evaluation Marks:	Performance:  2.75 (4)	Behavior:  2.5 (4)	OTA:  2.79

Awards and Decorations (per DD 214):	Rifle MM Pistol MM NDSM GWOTSM OSR

Periods of UA:  NONE

NJP:  2

- 20090904:	Article 111 (Drunken or reckless operation of a vehicle)
	Awarded: RIR FOP RESTR EPD  Suspended:  RIR (Vacated 20091009)

- 20091102:	Article 92 (Failure to obey order or regulation)
	Awarded: RIR RESTR EPD  Suspended:  NONE

SCM:  NONE	SPCM:  NONE	CIVIL ARREST:  NFIR	CC:  NFIR

Retention Warning Counseling:  1

- 20091102:	For your conviction of VUCMJ, Article 92 (Failure to Obey a General Order)

Administrative Corrections to the Applicant’s DD 214

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

	Block 24, Character of Service, should read: “UNDER HONORABLE CONDITIONS (GENERAL)”
	Block 28, Narrative Reason for Separation, should read: “PATTERN OF MISCONDUCT”

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:	☐

Types of Witnesses Who Testified

	Expert:	☐	Character:	☐

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 29, effective 10 November 2009 until Present, Article 1910-140, SEPARATION 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 IV, Para 403m(7)(a), Presumption Concerning Court-Martial Specifications.

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

Applicant’s Issues

1.	The Applicant contends that his in-service conduct was otherwise so meritorious as to warrant an upgrade and change to narrative reason for separation as evidenced by his early promotion to the rank of E-4
2.	The Applicant contends he was found innocent in a civilian court of one of his offenses which he contends should clearly warrant a change in his narrative reason for separation
3.	The Applicant implies he would not have been punished for his second offense had he not been being punished for his first civilian offense and that, even if the offense stood on its own merit, it would not warrant separation for a pattern of misconduct
4.	The Applicant implies his DUI arrest caused him to be unable to fully pay his bills, specifically his rent for two months, and warrants consideration for an upgrade

Decision

Date:  20151022	DOCUMENTARY REVIEW	Location:  Washington D.C.	Representation:  NONE

By a vote of 5-0 the Characterization shall remain UNDER HONORABLE CONDITIONS (GENERAL).
By a vote of 5-0 the Narrative Reason shall remain PATTERN OF 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 Board did complete 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 one NAVPERS 1070/613 (Page 13) warning and two nonjudicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation, one specification) and Article111 (Drunken or reckless operation of a vehicle, one specification).  Based on the offense(s) committed by the Applicant, his command administratively processed him for separation.  When notified of administrative separation processing using the notification procedure, the Applicant exercised his right to request a General Court-Martial Convening Authority (GCMA) review and waived his rights to consult with a qualified counsel and submit a written statement.  The NDRB noted that the Applicant submitted a written statement to his GCMA to appeal his separation characterization in order to qualify for access to the G.I. Bill.

Issue 1:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends that his in-service conduct was otherwise so meritorious as to warrant an upgrade and change to narrative reason for separation as evidenced by his early promotion to the rank of E-4.  In reviewing the Applicant’s record the NDRB noted an official record book entry dated 14 October 2009 that stated:  “Authorized advancement to MA3 withdrawn this date due to evaluation dated 09JUN16 to 09OCT14.”  Previous to this entry, another entry dated 29 May 2009 annotated that the Applicant was frocked to MA3 on that date.  The NDRB found no other references to the Applicant attaining the paygrade of E-4 and therefore concluded that he was never actually promoted to E-4 during his service.  Furthermore, the NDRB noted that the Applicant originally enlisted at the paygrade of E-3 and was discharged at the paygrade of E-1 as a result of the misconduct that resulted in his nonjudicial punishments.

The Applicant was ultimately administratively separated and not separated upon expiration of enlistment or fulfillment of service obligation.  The characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation.  Other considerations shall be given to the member’s length of service, grade, aptitude, and physical and mental condition.  Based on the Applicant’s record of service, the NDRB determined the Applicant’s service was honest and faithful but significant negative aspects of his conduct or performance of duty outweighed the positive aspects of his service record, and the awarded characterization of service was warranted.  Relief denied.

Issue 2:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends he was found innocent in a civilian court of one of his offenses which he contends should clearly warrant a change in his narrative reason for separation.  The record of evidence shows the Applicant was found guilty of violation of Article 111 at NJP.  Having separate civilian charges dismissed after discharge has no bearing on the fact that at the time of his separation, enough evidence existed to support and warrant his discharge.  The Applicant’s command acted accordingly with full knowledge of this evidence and was within established guidelines and policy in doing so.  Relief denied.

Issue 3:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant implies he would not have been punished for his second offense had he not been being punished for his first civilian offense and that, even if the offense stood on its own merit, it would not warrant separation for a pattern of misconduct.  The Applicant’s record of service documents two NJPs, one retention warning counseling, and a well-documented pattern of failing to pay just debts.  The NDRB found this issue to be without merit as the Applicant amply meets the requirements to be administratively separated due to his own misconduct.  Relief denied.

Issue4:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant implies his DUI arrest caused him to be unable to fully pay his bills, specifically his rent for two months, and warrants consideration for an upgrade.  The Applicant’s record of service contains a counseling chit dated 4 November 2009 citing the Applicant had chronic issues paying his rent several months before his in-service legal issues.  Specifically it cited that the Applicant had not paid his October or November rent to his landlord and that he had been previously counseled three months prior for failing to pay both his rent and security deposit after having been advised to have these payments be deducted directly from his accounts.  Further financial negligence was documented in the Applicant’s Commanding Officer’s administrative separation recommendation letter stating that the Applicant had not paid his rent since February 2010 and owed over $7,500 in back rent despite having received his full overseas housing allowance monthly.  The NDRB found this issue to be without merit as the Applicant’s issues concerning fiscal irresponsibility were documented as having begun prior to his other in-service misconduct.  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, and discharge process, the Board found the discharge was proper and equitable.  Therefore, the awarded characterization of service shall remain UNDER HONORABLE CONDITIONS (GENERAL) and the narrative reason for separation shall remain PATTERN OF MISCONDUCT.

The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his discharge.  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, or http://www.secnav.navy.mil/mra/bcnr/Pages/default.aspx 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:  Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code.  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 	RESTR - Restriction	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	CBW - 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