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Docket No. ND01-00360

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

ex-HR, USNR
Docket No. ND01-00360

Applicant’s Request

The application for discharge review, received 010202, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions.  The applicant requested a documentary record discharge review.  The applicant listed the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010615.  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 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1. I respectfully request to have my discharge upgraded to a general discharge.  I believe the record to be in unjust due to the following items; I received 4 months in the brig force writing checks that did not clear.  I had already paid off the drafts and none of the companies pressed any charges against me, but my command (Naval Hospital Great Lakes) took it upon themselves to press charges.  I know there's no excuse for my actions, but I took it upon myself to correct my mistakes without being told to by my command.  I was charged with larceny, but I never in my life stole anything.  Sir or Mam you can look into my service record and see I've never got in trouble for anything during my enlistment.  I'm enclosing a copy of my special court-martial as well as my DD149.

2.  (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of her application.

Documentation

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

Statement from applicant
Copy of DD Form 214
Two pages from applicant's service record

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	950126 - 950601	COG

Period of Service Under Review:

Date of Enlistment:  950605		Date of Discharge:  990820

Length of Service (years, months, days):

	Active:    04  02  16
	Inactive:  None

Age at Entry:  18			Years Contracted:  8

Education Level:  12			AFQT:  50

Highest Rate:  HN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF*	Behavior:  NMF*		OTA:  NMF*

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, GCM

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events:

990222:	Special Court Martial
	Charge I: violation of the UCMJ, Article 121 (4 specs):
	Specification 1: Steal items of merchandise, of a total value of $215.35, the property of Jewel-Osco in June 1998.
	Specification 2: Steal United States currency and items of merchandize, of a total value of $882.83, the property of the Navy Exchange in June 1998.
	Specification 3: Steal items of merchandise, of a total value of $800.28, the property of Traffic Jamz in June 1998.
	Specification 4: Steal items of merchandise, of a total value of $143.66, the property of Pep Boys in June 1998.
	Charge II: violation of the UCMJ, Article 123a:
	Specification: Wrongfully and unlawfully make and utter, certain drafts upon the Great Lakes Credit Union in June 1998 for a total of $2042.12.
	Findings: to Charge I and II and specifications thereunder, guilty.
	Sentence: CHL for 4 months, forfeiture of $600 per month for 4 months, reduction to HR.
	CA 990318: Sentence approved and ordered executed, except for the execution of that part of the sentence extending to confinement in excess of 3 months is suspended for a period of 12 months.

990222:	Applicant to confinement.

990409:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

990409:  	Applicant advised of his rights and having elected not to consult 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.

990503:	Applicant from confinement.

990622:	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): Very strongly recommend that Hospitalman Seaman Recruit (applicant), U.S. Navy, be separated from the naval service with a discharge characterization of Other Than Honorable (OTH). His offenses clearly show that he cannot and will not conform to military standards and Navy Core Values, and demonstrates a clear and flagrant disregard for authority and regulations.  Seaman Recruit (applicant) is not recommended for reenlistment and has no potential for future service is any military organization.

990712:	Chief of Naval Personnel forwarded recommendation to Assistant Secretary of the Navy (Manpower and Reserve Affairs).

990728:	Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved applicant's discharge.

990804:	CNMPC 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 990820 under other than honorable conditions for misconduct due to commission of a serious offense (A and B).  The Board presumed regularity in the conduct of governmental affairs (C).  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 (D and E).

In response to issues 1 and 2, the Board found that relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts.  With respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on equitable relief.   The applicant's case was considered under the pertinent standards of equity to determine if any factors in this particular case merited relief.  The NDRB found the applicant’s service record devoid of any mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded.  

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 (E).  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) and certification of non-involvement with civil authorities (police records check) in order for consideration for clemency based on post-service conduct.  At this time, the applicant has not provided any 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. 

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 
12 Dec 97 until 29 March 2000, Article 1910-142  [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT- COMMISSION OF A SERIOUS OFFENSE.

B.  In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 121, for 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 "afls10.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/A9233/A9221