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Docket No. ND05-01306

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

FOR OFFICIAL USE ONLY

 ex-SKSN(SS), USN
Docket No. ND05-01306

Applicant’s Request

The application for discharge review was received on 20050727.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions).  The Applicant requests a personal appearance hearing before the Board in the Washington, D.C. Metropolitan area.  The Applicant did not designate a representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060413.  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 by reason of misconduct due to commission of a serious offense.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“I would like an upgrade so I can re-apply to the Jacksonville Sheriff’s Office.  I had 3 years of good service (I achieved the navy good conduct medal).  I served my country the best I could, and would like a chance to serve my community as a police officer.  After 3 years of good service I made a mistake, that I regret and hope it will not hold me back from proving I would serve my community with value and pride.  Please review my actions that I have taken, I admitted my mistake and I have paid the price for it.  I have made great stides since leaving the military.  I am a professional diver, I am a father of a 6 month old with a child on the way.  I want to provide the best life a can for them, so I would really appreciate an upgrade to a general discharge.  I want to provide for my family and my community as a police officer.  I know my actions do not warrant an honorable upgrade, but I think I deserve a general discharge and I hope you feel the same way.  Thank you.  I would like to appear before a review board, but I am unable to do to my work and home schedule.”

Documentation

In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:

Duplicate Hunter Safety Card, retrieved August 16, 2004
Character Reference ltr from P_ K. D_, dtd September 9, 2005
Character Reference ltr from J_ C. P_, dtd September 6, 2005
Applicant’s resumé (3 pages)
Certificate of completion, dtd February 6, 2003
Certificate of completion, dtd February 6, 2003
Certificate of completion, dtd February 6, 2003
Welding certification
Four pictures

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19970915 - 19971208	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19971209		Date of Discharge:  20011207

Length of Service (years, months, days):

	Active:    03  11  29
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  19

Years Contracted:  4

Education Level:  10 GED			AFQT:  59

Highest Rate:  SK3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.0 (1)			Behavior:  1.0 (1)		OTA:  2.00

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Good Conduct Medal, Submarine Enlisted Breast Insignia “Silver Dolphins”

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

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

Chronological Listing of Significant Service Events: 

010505:	NJP for violation of UCMJ, Article 107 (3 specs): (False Official Statement).  Specification 1: In that SK3 (SS) M_ H. T_(Applicant), did on board USS SAN FRANCISCO, on or about 21 March 2001 with intent to deceive, submit a special liberty request, to wit: That the reason for the aforementioned request was, “to visit last living grandparent, he is sick. (sic)” which totally false and was then known by the said SK3 M_ H. T_(Applicant) to be so false.
Specification 2: In that SK3 (SS) M_ H. T_(Applicant), did on board USS SAN FRANCISCO, on or about 16 April 2001, submit an official statement with the intent to deceive, to wit:  That to explain his unauthorized absence he had gotten lost in South Carolina as opposed to his previous statement that he had broken-down in South Carolina, which was totally false and was known by the said SK3 M_ H. T_(Applicant) to be so false.
Specification 3: In that SK3 (SS) M_ H. T_(Applicant), did on board USS SAN FRANCISCO, on or about, 16 April 2001, submit a formal apology to the COB with the intent to deceive, to wit: That in an attempt to explain his previous false official statements write, “I made a false statement to you, in order to cover up the fact that I made a mistake and left my parents house too late to return on time from special liberty,” which was totally false and was known by the said SK3 M_ H. T_(Applicant) to be so false.
	Award:  Forfeiture of $691 per month for 2 months, restriction for 30 days, reduction to E-3.  No indication of appeal in the record.

011031:	Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 86:  CHARGE I: Violation of the Uniform Code of Military Justice Article 86 (Unauthorized absence).
	SPECIFICATION: In that Storekeeper Seaman M_ H T_(Applicant), U.S. Navy, Submarine Sqaudron Support Unit, Norfolk, on active duty, did, on or about 0730 22 October 2001, without authority, absent himself from his unit, to wit: USS San Francisco located at Norfolk Naval Shipyard, Portsmouth, Virginia, and did remain so absent until on or about 2300 22 October 2001.
CHARGE II: Violation of the Uniform Code of Military Justice, Article 121 (Larceny).
SPECIFICATION: In that Storekeeper Seaman M_ H. T_(Applicant), U S Navy Submarine Sqaudron Support Unit, Norfolk, on active duty, did, in the vicinity of SuperServmart, on or about 5 and 18 September 2001 steal 6 printer cartridges, 2 Camelbacks, 1 Gator knife and 1 Gerber tool, military property, with a value of about $344.08.
CHARGE III: Violation of the Uniform Code of Military Justice, Article 123 (Forgery).
SPECIFICATION: In that Storekeeper Seaman M_ H. T_(Applicant), U. S Navy Submarine Sqaudron Support Unit, Norfolk, on active duty, did, on board USS San Francisco (SSN-711), on or about 5 and 18 September 2001 with the intent to defraud, falsely make the signature of Storekeeper First Class A_ C_ on a certain writing, to wit: a Servmart Purchase Request which said request would, if genuine, apparently operate to the legal harm of the USS San Francisco, in the USS San Francisco would be obligated to pay SuperServmart $334.08.
CHARGE IV: Violation of the Uniform Code of Military Justice Article 134 (Bribery).
SPECIFICATION: In that Storekeeper Seaman M_ H. T_(Applicant), US Navy Submarine Squadron Support Unit, Norfolk, on active duty, did on or about 5 September 2001, wrongfully give to Storekeeper Seaman Recruit V_ B_ a Gator knife, of a value of about $43.00 as compensation for services rendered by the said SKSR V_ B_ in relation to an official matter in which the United States was and is interested, to wit: remaining silent regarding the forged purchase requests and the disposal of unauthorized purchased items.

011102:	Charges referred to summary court-martial.

011102:	Summary Court-Martial.
	Charge I: Violation of the UCMJ, Art. 86:
Specification: Did, on or about 0730 22 October 2001, without authority, absent himself until on or about 2300 22 October 2001.
Charge II: Violation of the UCMJ, Art. 121:
Specification: Did, on or about 5 and 18 September 2001, steal military property.
Charge III: Violation of the UCMJ, Art. 123:
Specification: Did, on or about 5 and 18 September 2001 commit forgery.
Charge IV: Violation of the UCMJ, Art. 134:
Specification: Did, on or about 5 September 2000, wrongfully give SKSN B_ a Gator knife as compensation for services rendered.
	Finding: to Charge I, II, and III and the specifications thereunder, guilty.  Charge IV and the specification thereunder, not guilty.
	Sentence: Forfeiture of $510.00 for 1 month, restriction for 7 days, reduced to E-1.
	CA action 011102:  Sentence approved and ordered executed.
011108:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct - commission of a serious offense.

011108:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

011114:	Commanding Officer, Submarine Squadron Support Unit, Norfolk recommended discharge under other than honorable conditions by reason of misconduct due to a commission of a serious offense.  Commanding Officer’s comments:  “It was determined that SKSR T_(Applicant) lacks the potential for continued naval service.  Per reference (a), he is being processed for administrative separation.  I recommend that he be separated from the United States Navy with an Other Than Honorable discharge.”

011115:	COMSUBGRU TWO directed the Applicant's discharge under other than honorable conditions by reason of misconduct commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20011207 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of under other than honorable conditions.  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 states, “after 3 years of good service I made a mistake.”  Despite a servicemember’s prior record of service, certain serious offenses warrant separation from the naval service in order to maintain proper order and discipline.  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 and a summary court-martial conviction for violations of Articles 86, 107, 121 and 123 of the UCMJ.  The Applicant’s violations of Articles 107, 121 and 123 of the UCMJ are serious offenses.  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.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Relief is not warranted.

The Applicant contends that he has “made great stides [sic] since leaving the military.”  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety 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 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.  The Applicant’s submissions to support post-service consideration included character references, a resume and educational certificates.  Examples of documentation that should also be provided to the Board include proof of 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 post-service documentation for the Board to consider.  Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of 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), Change 31, dated 20 Feb 01, effective 25 Jan 01 until 21 Aug 02, Article 1910-142  [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violations of  UCMJ, Article 107, false official statement, Article 121, larceny or Article 123 robbery.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

		Secretary of the Navy Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023