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Docket No. ND00-00544

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

 ex-BMSN, USNR
Docket No. ND00-00544

Applicant’s Request

The application for discharge review, received 000328, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant listed the Veterans of Foreign Wars as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 001005.  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.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  My discharge was improper because the command did not follow the discharge regulations.
2.  My command abused its authority when it decided to discharge me with a bad discharge.
3.  I received awards and decorations.
4.  I received letter of recommendation.
5.  My average conduct and efficiency ratings/behavior and proficiency marks were good.
6.  My record of promotions showed I was generally a good service member.
7.  Personal problems impaired my ability to serve.
8. I have been a good citizen since discharge.
9.  Soon after leaving the service, the applicant was placed in a supervisory position overseeing a total of 25 people in the renovation of flooring.  He was also in training for assistant vice president of sales based on his background and his ability to communicate with others.
10.  Fairness and equity.

Documentation

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

Copy of DD Form 214
Job/character reference dated January 19, 1999
Job/character reference dated February 25, 1998
Ten pages from applicant's service record
Letter from Emergency Operations Officer dated May 10, 1996
Copy of Good Conduct Award certificate dated June 25, 1995
Copy of Navy Achievement Medal certificate dated April 13, 1995
Copy of Navy and Marine Corps Achievement Medal citation
Copy of Enlisted Performance Evaluation Report for 18Sep91 to 31Jan92, 1Feb92 to 31Jan93, 1Feb93 to 31Jan94, 1Feb94 to 17Jun94, and 18Jun94 to 30Jun95
Copy Navy Occupation/Training and Award
Copy of personnel qualification standards (2 pages)

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	900731 - 910623	COG

Period of Service Under Review:

Date of Enlistment:  910624		Date of Discharge:  960524

Length of Service (years, months, days):

	Active:    04  11  01
	Inactive:  None

Age at Entry:  17 Parental Consent	Years Contracted:  8

Education Level:  12			AFQT:  42

Highest Rate:  BM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.72 (5)	Behavior:  3.84 (5)		OTA:  3.80

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SASM with 1 Star, KLM, SSDR with 1 Star, GCM, NER (2), NAM, MUC

Days of Unauthorized Absence:  4 

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:

920615:	Retention Warning:  Advised of deficiency (Unauthorized absence.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

940316:	Retention Warning:  Advised of deficiency (False official statements), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

960116:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 0800, 8Jan96 to 1120, 12Jan96 (4 days/surrendered).
	Award:  Restriction and extra duty for 15 days, reduction to E-3.  Reduction suspended for 6 months. No indication of appeal in the record.

960123:	Retention Warning:  Advised of deficiency (Unauthorized absence.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

960229:	NJP for violation of UCMJ, Article 121: Larceny of a radar detector on 16Dec95, a value of about $105.00.
	Award: Punishment of RIR to QMSN suspended at CO's NJP of 96Jan16 vacated this date due to continued misconduct. No indication of appeal in the record.

960229:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

UNDATED:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

960513:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed a serious offense, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

960515:	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): Although Seaman (applicant) had been a satisfactory performer prior to the events in question, the magnitude and number of his offenses supersedes any consideration for future service.  Seaman (applicant) stole from a shipmate and lied repeatedly to the Chain of Command.  His actions are prejudicial to the good order and discipline and show a lack of maturity and judgment required by all military member's.  Additionally his behavior demonstrates a total disregard of Navy core values which are essential traits required by all, regardless of their rank or position in the chain of command.  I have lost all confidence in Seaman (applicant's) integrity, dependability. loyalty, or judgment.  I therefore feel that he demonstrates no potential for further service.  I strongly agree with the Board's decision on separation.  Signatures of LCDR P_, LT O_, and LT B_ were unavailable because (1) LCDR P_ is not stationed aboard PETERSON, (2) LT O_ is on emergency leave due to a death in his family, and (3) LT B_ was unavailable due to other commitments.  LT B_ was informed on 13 May 96 that his letter of deficiencies would be needed no later than 14 May1996 which he acknowledged.  Additionally, he was given the fax number to PERS 83 on 15 May 1996 with instructions to fax his letter of deficiencies upon completion.

960517:	Counsel's letter of deficiency.  Complete letter found in service record.

960520:	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 960524 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).

In response to the applicant’s issue 1 and 2, the Board found nothing in the records, nor did the applicant provide anything to indicate or to show that there exists an error of fact, law, procedure, or discretion associated with his discharge at the time of its issuance, and that his rights were prejudiced thereby.  The applicant was given his proper rights and due process, to include an Administrative Discharge Board.  Furthermore, there has been no change in policy by the Navy, or higher authority, made expressly retroactive to the type of discharge received by the applicant. 

In the applicant’s issues 3, 4, 5 and 6, the Board found that although the applicant may have had awards, a letter of recommendation and above average grades, this good was outweighed by his misconduct.  No relief will be granted based on this issue. 

The applicant states in issue 7 that personal problems impaired his ability to serve, although he does not explain or present any documentation to the Board concerning these problems, therefore no relief will be granted.

In the applicant’s issues 8 and 9, there is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the Service.  However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (D).  Those factors include, but are not limited to, the following:  evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct.  At this time, the applicant has not provided ample documentation of good character and conduct.  Therefore no relief will be granted.  The applicant is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15-years from the date of discharge.

In the applicant’s issue 10, the Board automatically reviews the discharge for “fairness and equity.”  In its review, the Board found that the discharge was both proper and equitable.  No relief will be granted based on this issue. 

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.  Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article [e.g., 121, larceny] if adjudged at a Special or General Court-Martial.

C.  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.  

D.  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.

E.  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 view DoD Directive 1332.28 and other Decisional Documents by going online at "afls14.jag.af.mil".

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
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  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/A0107/A9203/A9309/