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Docket No. ND02-00918

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

ex-AGAN, USN
Docket No. ND02-00918

Applicant’s Request

The application for discharge review, received 020612, 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 030319.  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 HONORABLE CONDITIONS (GENERAL)/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  To Whom It May Concern:

Upon reception of my first application for the correction of my records, no error was found by the board, and no injustice was assessed. I believe that the following might change your minds. Upon my arrival to Pt Mugu, PMTC at the time - I met Petty Officer M_ W_ (AG2), who is now Chief W_, and I believe en route to, the LaSalle at the time of this letter.  AG2 W_ assured me that he knew how to help someone in my position, meaning that I had a wife and a child on an E-  rate of pay. He soon told me what he meant - basically I was to lie about how much rent was paid, and that "everyone does it, it's no big deal." Now granted - I wasn't an idiot, and I knew it was probably wrong, but our new Commanding Officer, Lt. Commander A_ D_ B_, assured me that Petty Officer W_ was correct - that it was no big deal. Pardon me for being naive at the time, but when you're 19, just in the Navy, and just reaching your first duty station - Your Commanding Officer might as well be the almighty himself.  If he tells you that something is okay to do - you assume that he knows what he's talking about.  Now - all seems pretty tame right?  I should have known better, still shouldn't have done it - whatever.  Except when you consider the fact that it was Lt. Cdr. B_ that turned me in - to the Master Chief of the Base.  It seems that the Lt. Cdr. had a personal problem with me, and decided that since he knew I was doing something wrong (since he was the one that had put me up to it, along with Petty Officer W_), he would just that against me.  Thus ending my Navy career.  None of this came out at the Board, because as you all know, if an enlisted man tries to accuse an officer without proof, he will be court-martialed for slandering an officer.  I had no proof then, and I have none now - but it is the truth.  Was there an error?  Yes - an error in judgment on my part.  I should have known better.  Was there injustice?  Yes - an officer that suddenly decides that he doesn't like a sailor in his office, destroys him with on fell stroke, and not only gets away with it, isn't even questioned.  Please consider this, and take it into account.

Documentation

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

Letter to Applicant from Board for Correction of Naval Records dated May 2, 2002

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	900213 - 900219	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  900220		Date of Discharge:  921222

Length of Service (years, months, days):

	Active:    02  10  03
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  80

Highest Rate:  AGAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.60 (3)	Behavior:  3.60 (3)		OTA:  3.67

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  None

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

UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct – commission of a serious offense, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

900806:	Retention Warning:  Advised of deficiency (Writing bad checks), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

920204:	Counseled this date for writing bad checks, notified of corrective actions and assistance available, and advised of consequences of further deficiencies. 

920930:	NJP for violation of UCMJ, Article 132: Fraudulently present a VHA certificate for approval and payment of a claim against the United States for VHA for the period of 1 November 1991 to 31 July 1992 in the amount of $1199.75, violation of UCMJ, Article 134: Dishonorably fail to pay debt of $1400.00 for non-payment of rent for the months of May-August 1992.
	Award: Restriction and extra duty for 45 days.  No indication of appeal in the record.

921013:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

921015:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

921124:	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 honorable conditions (general).

921202:	Commanding Officer recommended discharge under honorable conditions (general) by reason of misconduct due to the commission of a serious offense.

921211:	BUPERS directed the Applicant's discharge under honorable conditions (general) 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 921222 under honorable conditions (general) 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).

Issue 1.  The Applicant’s allegations of improprieties and inequitable treatment by his chain of command does not overturn the presumption of regularity in this case.  The record is devoid of evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity is evident 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.  Relief not warranted.

The Applicant 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.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until 
04 Mar 93, 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 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/A9301/A9401/A9217/A9221