Author: CAP
Last saved by: Margaret L. Ryan
Company: NCPB

Docket No. ND99-00125

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

ex-ADAN, USN
Docket No. ND99-00125

Applicant’s Request

The application for discharge review, received 981102, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 991004.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

The NDRB did note an administrative error on the DD Form 214 issued on 10 April 1986.  Block 12a, Date Entered AD This Period should read:  “83 FEB 17” vice “81 DEC 11”, Block 12c, Net Active Service This Period, should read:  "03  01  23" vice "04  03  30", Block 12d, Total Prior Active Service, should read:  "00  05  24" vice 
"00  00  00" and Block 12e, Total Prior Inactive Service, should read:  "00  10  02" vice "00  01  20".  This DD Form 214 should be corrected or reissued as appropriate. Additionally, NDRB noted an administrative error on the DD Form 214 issued on 11 November 1995.  Block 12d, Total Prior Active Service, should read:  "03  01  23" vice "04  09  24" and Block 18, Remarks, should contain the following entry:  "CONTINUOUS HONORABLE ACTIVE SERVICE FROM 86 APR 11 UNTIL 
92 OCT 12.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  The Other Than Honorable Discharge that I had received had been due to the lack of availability of legal counsel and proper guidance.

Documentation

In addition to the service record, the following additional documentation, submitted by the applicant, was considered:

Copy of DD Form 214 (2 copies)
Copy of pretrial agreement dated 22 August 1995
Copy of Enlisted Performance Record
Copy of applicant's social security card

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Active:   USN			901221 - 921012	HON
		   USN			860411 - 901220	HON
		   USNR		830218 - 860410	HON
		   USNR		811211 - 820604	HON 
Inactive: USNR		811021 - 811210	Reported ACDUTRA
		   USNR		820605 - 830217	Reported Active duty

Period of Service Under Review:

Date of Enlistment:  921013*	Date of Discharge:  951101

Length of Service (years, months, days):

	Active:    03  00  19
	Inactive:  None

Age at Entry:  31			Years Contracted:  2 (17 months extension)

Education Level:  12			AFQT:  28

Highest Rate:  AD2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (3)	Behavior:  4.00 (3)		OTA:  4.00

Military Decorations:  None

Unit/Campaign/Service Awards:  GCM (2), NDSM, JMU, SASM, MUC, OSR (5)

Days of Unauthorized Absence:  None

*Reenlistment contract not contained in record - extracted from CO, NAVSTA Rota ltr of 29 Aug 95.

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

950828:	NJP for violation of UCMJ, Article 81:  Conspire with Aircrew Survival Equipmentman Second Class to commit larceny of housing allowances of a value of $3179.91 on 18Aug894 to 17Feb95, from the government by failing to inform U.S. Navy that he shared a residence with Aircrew Survival Equipmentman Second Class, another military service member entitled to housing allowances, violation of UCMJ Article 107 (2 specs): (1) Sign an official record, with intent to deceive on 18 August 1994, to wit:  Individual Overseas Housing Allowance Report, (2) Sign an official record with intent to deceive on 1 September 1994, to wit:  a U.S. Government Lease Contract, violation of UCMJ Article 121: Steal $3,179.91, the property of the U.S. Government from 18 August 1994 to 17 February 1995, violation of UCMJ, Article 132:  For the purpose of obtaining the approval, allowance, and payment of a claim against the United States in the amount of $1,055.61 from 18 August 1994 to 17 February 1995, use a certain writing, to wit: Individual Overseas Housing Allowance Report, which said writing, as he, the said Aviation Machinist's Mate Second Class, then knew, contained a statement that he rented a dwelling and resided alone, which statement was false and fraudulent in the he shared a dwelling with a U.S. Navy member entitled to and receiving a housing allowance, and was then known by the said Aviation Machinist's Mate Second Class, to be false and fraudulent.
	Award:  Forfeiture of $661.20 per month for 2 months, restriction for 60 days, reduction to AD3.  No indication of appeal in the record.

950828:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

950828:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

950829:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  Commanding officer’s comments verbatim:  "Originally charges of conspiracy, fraud, and larceny were referred to a special court-martial in Petty Officer's (applicant's) cases.  As a result of a pre-trial agreement submitted by Petty Officer (applicant) and his counsel, I entertained non-judicial punishment in his case and accepted his request to waive his administrative board and be discharged from the naval service with an Other than Honorable discharge.
	Based on the serious nature of the offenses which I found Petty Officer (applicant) guilty of at non-judicial punishment and his agreement to waive his administrative hearing in lieu of a special court-martial, I strongly recommend that he be discharged from the naval service with an Other than Honorable Discharge."

950928:	BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 951101 under other than honorable conditions for misconduct due to commission of a serious offense (A).  The Board presumed regularity in the conduct of governmental affairs (B).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

The applicant states the other than honorable discharge was due to the lack of availability of legal counsel and proper guidance.  The NDRB found this an unfounded claim.  In fact, the applicant was represented by counsel and entered a plea that “all charges (against the applicant) referred to a special court martial will be withdrawn and adjudicated at captain’s mast instead”(950822). Additionally, the applicant consulted with qualified counsel on 950828 and acknowledged such on Statement of Awareness and Request for, or Waiver of Privileges dtd 950828 regarding his administrative processing for separation.  Relief not warranted.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective 
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

PART IV - INFORMATION FOR THE APPLICANT

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 Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive.  You should read Enclosure (5) of the Directive 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 obtain a copy of DoD Directive 1332.28 by writing to:

		DA Military Review Boards Agency
		Management Information and Support Directorate
		Armed Forces Reading Room
		Washington, D.C.  20310-1809

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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		Washington Navy Yard
		720 Kennon Street SE Rm 309
		Washington, D.C.  20374-5023

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
INDEX:A6730/A0137/A9225/A0145/A9217