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

ex-SK3, USN
Docket No. ND01-00679

Applicant’s Request

The application for discharge review, received 010417, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance discharge review before a traveling panel closest to Norfolk, VA.  The applicant listed the Disabled American Veterans as the representative on the DD Form 293.  In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area.  The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 011031.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the 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.  To Whom It May Concern:
It has been my experience that the Navy has treated me in a fair and responsible manner, for my fifteen years of devoted service.  However, in entering a discharge status of other than honorable, the Navy has show little compassion for my circumstances, and it is my opinion that the discharge status has undue repercussions upon my family and I.
Moreover, in light of my super-outstanding evaluations, I believe the options that I was afforded during my discharge proceedings were unnecessarily restrictive and irrespective of the time I spent serving the Navy in an honorable and efficient manner.  I do not content that I was not mistaken in my actions, and I do not content that I was unaware of the options presented. Nevertheless, I feel that the options offered were neither exhaustive nor compassionate.  Indeed, the entered discharge status is neither appropriate nor consistent with my devoted service, and the unforeseen repercussions upon my family cannot be justified as targeted punitive measures.  As you will see, my military records show that I was a "highly valuable asset" to the navy, receiving numerous commendations, and invariably excellent evaluations. My mistakes involved no seditious nor treacherous intentions and are far from those considered imbued with moral turpitude.  It is unfortunate that the Navy feels it must level out a punishment, which carries over for the rest of my life.  I believe that I am deserving of a less stringent discharge status, and as an accomplished sailor, a devoted husband and father, and as an honorable patriot, I respectfully request: (1)  My discharge status is elevated to the status of honorable; or

(2)  Allow me to be reinstated into the Navy to serve my remaining five years doing what I love, serving my country; or (3)  Allow me to retire with annuity benefits for my devoted fifteen years of service for the following reasons. It is my opinion that my discharge status is not appropriated nor consistent with my service and unduly harsh in consideration of my circumstances.  According to my evaluations, I served fifteen years in the Navy as an honorable and committed sailor.  I executed my duties with "exceptional professionalism," and with "unmatched dedication," and "sacrifice." In fact, I performed my duties, which included the transfer and handling of HAZMAT materials, with "relentless determination," and "loyal dedication ..., keeping with the highest traditions of the United States Naval Service." According, in my "untiring efforts" as an SK2 and SK3, I was charged with maintaining and accounting formidable numbers of Naval assets, both material and financial.  The Navy continued to recognize that my ability to handle this duty was “exceptional" and trustworthy. However, when circumstances that overwhelmed my personal life and assets presented themselves, the Navy felt that although I managed to keep my personal issues separated from my professional duties; I had acted in a manner considered other than honorable.  I disagree.
As an American sailor, my duties consistently took me abroad, separating me from my family by thousands of miles.  Being the sole supporter, this makes it very difficult to sustain financial understanding between myself and those thousands of miles away.  Indeed, it is just this type of separation that caused me to make some erroneous financial decisions.  At this time, I must reinforce that despite these personal financial tensions, my service to the Navy, which often included duties to oversee and account for large amounts of material and "sorely needed" financial assets, went unhindered. Nevertheless, my personal financial situation grew more dire.  Unfortunately, I was unable to provide for my family members when I desperately desired to do so.  Also, it is unfortunate that I was unable to secure the necessary funds to achieve financial stability in time to alleviate my debt.  Regardless of my personal financial situation, my duty went on honorably, trustworthy, and in a professional manner.  With documented fifteen years of service that rises to this level, how can it be consistent that I am categorized as other than honorable.
I understand fully that the Navy considers my actions grounds for dismissal, and I do not contend that I did not commit such acts.  However, in keeping with my character of service, I contend that a status of other than honorable is not appropriate for a sailor of my stature.  Even in times of hardship, I continued on as an American sailor with diligent of devotions.  I contend that my service is honorable, and that the reparations I made to the Navy, for my purely personal mistake, rises to the level of satisfactory punishment.
Second, in accordance with my acceptance of responsibility for my actions, I believe that acceptance of the plea offered to me does not indicated my total acceptance of all of its components.  I understand that the Navy, which I intended to make no matter what the disposition of my case, must make reparations.  Further, I understand that the Navy would desire to separate itself from my service, no matter how exemplary.  I do not understand, however, how it can be decided that my service to the navy was other than honorable. During my proceedings, I was offered a lightened sentence that include the other than honorable discharge or I was to face a court martial, which threatened to reap far more exacting punishment.  It was recommended to me by my defense attorney and Naval Legal Services that I take the plea offered by the prosecution.  I was stuck between a rock and a hard place.  I have two young children, 6 and 10; I could not afford to spend any amount time in Leavenworth.  My course of action was clear, however, the determination of my fate is not. In reconsideration of my case, you will see that my service was, in fact, honorable, and the circumstances surrounding my discharge did not contribute to corrupting my service, but merely surrounded my unfortunate personal position. Moreover, in determining if my discharge status is consistent and appropriate for my character of service.  I would like to pay close attention to the conditions of my first offense.  As delineated in my request for clemency, the circumstances surrounding my first offense were tainted with buearacratic mishandling.  Unfortunately, this does not alleviate my culpability in the actions I undertook while in misled state.  However, I do believe that you must take this into consideration in reviewing the circumstances surrounding my second offense, in which my first offense was given great weight.
In this respect, I do not deserve the additional hardships that one encounters with the stigmatization of being other than honorable.  It is clear to me, and I wish for you to see, that my service is honorable; as a sailor in performance of his assigned duties, I performed honorably; as a husband and father, I am honorable; and, as a citizen separated from the Navy I will conduct my personal affairs honorably.  Sincerely, 
2.  After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, we continue to note the contentions as set forth on the application by the appellant of an upgrade of his current Under Other Than Honorable Conditions discharge to that of Honorable.

The record reflects the FSM served in the United States Navy from May 2, 1989 to May 30, 2000, at which time he was discharged as noted above for commission of a serious offense.  On this issue we refer the Board members to the statements of record submitted by the FSM as they provide a great deal of insight. The FSM requests equitable relief in the manner as noted above, he believes the discharge currently held was unfair and given without due consideration to his previous good service and high proficiency marks.  Also of record attesting to the FSM's character are those who have known the gentleman both before and after service. As the representative this service requests consideration be given to equitable relief in the form of a General Discharge, Under Honorable Conditions.  We ask for this consideration based on the previous good service and high proficiency marks on the appellants evaluations, but also due to circumstances of family problems that evolved, which undoubtedly caused a lot of unneeded stress, and ask that some compassion be utilized. We ask for the board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the applicant.

Documentation

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

Copy of DD Form 214
Copy of appointment of Veterans Service Organization as applicant's representative dated July 12, 2000
Copy of statement in support of claim dated July 12, 2000
Statements from applicant dated February 20, 2001
Sixty pages from applicant's service record

PART II - SUMMARY OF SERVICE

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

	Active:   USN 		850528 - 890501	HON
		   USN			890502 - 941222	HON
		   USN			941223 - 990322	HON
	Inactive: USNR (DEP)	850401 - 850527	COG

Period of Service Under Review:

Date of Enlistment:  990323		Date of Discharge:  000530

Length of Service (years, months, days):

	Active:    01  02  08
	Inactive:  None

Age at Entry:  35			Years Contracted:  6

Education Level:  14			AFQT:  21

Highest Rate:  SK2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (3)	Behavior:  2.00 (3)		OTA:  2.91

Military Decorations:  NAM (2)

Unit/Campaign/Service Awards:  MUC, NER (4), GCM (3), AFEM (2), SSDR (2), OSR (3), Letter of Commendation (Flag)

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:

000404:	NJP for violation of UCMJ, Article 123A (8 specs): Making, drawing, or uttering check, draft or money order without sufficient funds totaling $6,400.00.
	Award: Forfeiture of $775 per month for 1 month, extra duty for 30 days, reduction to SK3.  No indication of appeal in the record.

000404:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

000404:	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.

000404:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

000420:	Commander, Fleet Air Mediterranean 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 000530 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’s issue (letter) and the applicant’s representative’s letter stated that the other than honorable discharge was inequitable based on his positive contributions while on active duty.  He discussed the circumstances of his financial hardship that contributed his misconduct and discharge.  Additionally, he requested the discharge be changed to honorable, or that he be reinstated in the Navy or be retired with annuity benefits.  After careful review of the applicant’s service record, the NDRB found the Other Than Honorable discharge accurately characterizes the applicant’s service.  Clearly, his positive contributions were outweighed by his misconduct.  The record shows the applicant was found guilty of violation of UCMJ Article 123A: Making, drawing, or uttering check, draft or money order without sufficient funds totaling $6,400.00.  Relief based on this issue is not warranted.

Regarding the applicant’s request for reinstatement or retirement, the NDRB has no authority regarding reinstatement or reenlistment.  Relief is not warranted.

Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the applicant’s enlistment.  Additionally, there is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in civilian life, subsequent to leaving the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review.  Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for clemency, based on post-service conduct.  The applicant did not provide any of these documents.  He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required. 
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.  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 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