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

FOR OFFICIAL USE ONLY

 ex-ET3, USN
Docket No. ND05-01449

Applicant’s Request

The application for discharge review was received on 20050830.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060512.  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 General (Under 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:

“My discharge was inequitable because I don’t believe my previous record was duly considered.

The discharge was based on a dropped civil charge that related to the charge of shoplifting.

I would have served the remainder of my term with the same dedication I had shown previously given the chance as was stated in my testimony.  Even had I to take a position with no clearance and the reduction in grade.”

Documentation

Only the service and medical records were reviewed.  The Applicant did not provide additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	19961216 - 19961225	COG
	Active:   USN	19961226 - 20001130	HON

Period of Service Under Review:

Date of Enlistment:  20001201		Date of Discharge:  20020710

Length of Service (years, months, days):

	Active:    01  07  10
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  26

Years Contracted:  6

Education Level:  12				AFQT:  93

Highest Rate:  ET2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.0 (1)			Behavior:  4.0 (1)		OTA:  4.14

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Navy “E” Ribbon; Navy & Marine Corps Acheivement Medal; Enlisted Surface Warfare Specialist; Navy Pistol Marksmanship Ribbon; National Defense Service Medal; Navy Good Conduct Medal; Sea Service Deployment Ribbon; Armed Forces Expeditionary Medal;

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

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

Chronological Listing of Significant Service Events: 

001201:	Reenlisted this date for a term of 6 years.

020325:	Biloxi Police Department Narrative Form:  Shoplifting of a sweat shirt from JC Penney, a value of $30.00

020325:	Uniform Arrest/Booking Form:  Misdemeanor: Shoplifting on 020325.  Bond total:  $820.00.  Court Date: 020502.

020504:	Incident report.  Charge of shoplifting of 8 DVD movies and 1 PC2100 Memory card, a value of $268.00 from the Main Exchange, Keesler, AFB.

020507:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to commission of a serious offense.

020507:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

020509:	NJP for violation of UCMJ, Article 121:
	Specification: In that ET2 S_ W. S_(Applicant), USN, on active duty, Naval Technical Training Unit Keesler AFB, MS, did, on or about May 4, 2002, steal eight DVDs and one 256 MB stick of PC2100 RAM, value of about $286.00, the property of the Keesler Air Force Base Exchange.
	Award:  Forfeiture of $500 per month for 2 months, restriction for 30 days, reduction to E-4.  No indication of appeal in the record.

020530:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to commission of a serious offense, that such misconduct warranted separation, and by a vote of 2 to 1 recommended discharge with a general (under honorable conditions).

020603:	Civil Court Judgement Information. Plea type: Nolle Prosse. Charge:  theft shoplifting under $50.00.
Sentence:  Fine $820.00 and 10 days in jail.  S/S fine and jail for 1 years GB.  Do not return to JC Penney (Nolle Prosse indicates the charge was dropped but a sentence was recorded. The Commanding Officer’s letter 020613 states the Applicant pled guilty to this civil charge.)

020613:	Commanding Officer, Naval Technical Training Unit, Keesler AFB, Mississippi recommended discharge under other than honorable conditions by reason of misconduct - commission of a serious offense.  Commanding Officer’s comments:  “The Senior Member of the Administrative Separation Board did not allow ET3 S_(Applicant)’s pending civilian charge of shoplifting to be submitted as evidence; however, on 3 June 2002, ET3 S_(Applicant) pled no contest to the charge and was convicted.  Both larceny actions clearly demonstrate that the service was not under honorable conditions, and to allow a General discharge would be contrary to good order and discipline at this command and Navy-wide.  I strongly recommend ET3 S_(Applicant) be separated from the Naval service with a characterization of service of Other Than Honorable conditions.”

020625:	CNPC directed the Applicant's discharge with a general (under honorable conditions) by reason of misconduct due to commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020710 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of general (under 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). 
 
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.  A general 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 violation of Article 121 of the UCMJ.  Violation of Article 121 of the UCMJ is considered a serious offense. 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 discharge characterization was “based on a dropped civil charge that related to the charge of shoplifting.” An Administrative Board recommended discharge with a general (under honorable conditions) characterization on 020530. Commanding Officer NTTU letter of 020613 states that the senior member of the Administrative Separation Board did not allow the pending civil conviction for shoplifting to be submitted as evidence. The Administrative Board did not consider the pending civil charge in determining the recommended characterization of service. By regulation, the Separation Authority cannot approve characterization recommendations less favorable to the respondent than those recommended by an Administrative Board. Therefore, relief is not warranted.

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.  The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this 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 violation of the UCMJ, Article 121 - larceny.

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