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Docket No. ND04-00242

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

ex-OTASN, USN
Docket No. ND04-00242

Applicant’s Request

The application for discharge review was received on 20031119.  The Applicant requests the characterization of service received at the time of discharge be changed to general (under honorable conditions).  The Applicant requests 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 20040728.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  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, as stated

Applicant’s issues, as stated on the application:

1.  “What happened was a long time ago, almost 10 years ago.  I was a kid (twenty) who knew no better, and had no idea of the future ramifications of his actions.  At the time of the incident, I had re-enlisted for 6 years, with the intent to make the military my career.  Things didn’t work out the way I planned.  I have spent the last 16 months working for the Kendall County Sheriff’s Department.  I kept my military discharge hidden because Law Enforcement is what I want to do.  I always have and I always will.  
On 24 Sept 2003, a gentleman from TCLEOSE, the governing body for Correctional Officers and Peace Officers for the State of Texas, met with me and asked for my “voluntary” surrender of my Jailer’s License.  I have spent the last 12 months spending every weekend from 0800-1700 attending Peace Officer school ( a “Police Academy” for all intents and purposes).  I have devoted my time, my energy, my money and my life to Law Enforcement.  Before surrendering my license, I was about to leave the Sheriff’s Department in the capacity of being a Correctional Officer, making the transition to Patrol, as a licensed Peace Officer for Kendall County.  I have built a fine reputation, which is supported by the documentation provided by my superiors.  These same superiors have assured me that if I can meet the minimum qualifications for TCLEOSE licensing, that I am guaranteed a position within the department.  As of this date, I have surrendered my license and will await your response.  I only ask for the opportunity to continue with my life, so that myself and my family may move forward, and that I leave this world making my mark for good, as a deterrent for criminal activity.  Thank you for your time consideration.  I look forward to hearing from you.”

Documentation

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

Copy of DD Form 214  (Service 1)
Reference of Character from R_ T_, dated October 8, 2003
Reference of Character from C_ M_, dated September 25, 2003
Reference of Character from N_ D_ B_, dated September 6, 2003
Reference of Character from P_ A_, undated
Reference of Character from A_ G_, undated
Reference of Character from K_ G_, undated

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	900619 - 901217	COG
	Active:   USN			901218 – 930714	HON

Period of Service Under Review:

Date of Enlistment:  930715		Date of Discharge:  940114

Length of Service (years, months, days):

	Active:    00  06  00
	Inactive:  None

Age at Entry:  20			Years Contracted:  6

Education Level:  12			AFQT:  88

Highest Rate:  OTA3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NOB			Behavior:  3.20 (1)		OTA:  3.40

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

Chronological Listing of Significant Service Events:

930915:	NJP for violation of UCMJ, Article 121(1 Spec): Theft of property.  Did on or about 8 September 1993, steal one Super NES Nintendo Game system, of a value of $139.00, one Sega boxing video cartridge, of a value of $32.95, and one Entrepreneur Day Runner game system, of a value of $51.00, the property of the Army & Air Force exchange service.
	Award:  Forfeiture of $233.59 per month for 1 month, restriction and extra duty for 14 days, reduction to OTASN.  No indication of appeal in the record.

930929:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

930929:	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.

931209:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

931223:	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 19940114 under other than honorable conditions for misconduct due to commission of a serious offense (A & 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).

Issue 1.  When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  An Under Other Than Honorable Conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by nonjudicial punishment proceedings for a violation of Article 121, larceny, of the UCMJ.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant contends that his problems in the Navy can be attributed to being "a kid (twenty), who knew no better."  While he may feel that his immaturity was the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  Relief denied.

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural error or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no such errors after a review of Applicant’s case.  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 naval service.  The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided sufficient documentation for the Board to consider.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 5, effective 
05 Mar 93 until 21 Jul 94, 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 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 "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.