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Docket No. ND06-00086

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

FOR OFFICIAL USE ONLY

 ex-EMFN, USN
Docket No. ND06-00086

Applicant’s Request

The application for discharge review was received on 20051017.  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 20060810.  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 request an upgrade of discharge because of condition of my discharge from the military.  I requested discharge from the military because of an unfair NJP ruling where I was later proven innocent.
I want an upgrade because I am pursuing a career in law enforcement and need an honorable discharge in order to meet minimum requirements.”

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)	19970714 – 19980630		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19980701		Date of Discharge:  20010621

Length of Service (years, months, days):

	Active:    02  11  20  (Does not include lost time)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  16 days (Extracted from Form DD214)
	Confinement:		   None

Age at Entry:  18 

Years Contracted:  4 

Education Level:  12				AFQT:  63

Highest Rate:  EM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.5 (2) 		Behavior:  1.5 (2)		OTA:  2.23 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Sea Service Deployment Ribbon, Battle “E” Ribbon, Navy Achievement Medal.

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: 

000531:	NJP for Charge 1: Violation of UCMJ, Article 121:
	Specification1: In that EM3 K_ K. G_ (Applicant), USS BATAAN, on active duty, did on board USS BATAAN, located at Naples, Italy, on or about December 1999, steal an Automatic teller Machine (ATM) Card, of a value of $5.00, the property of Navy Federal Credit Union.
	Specification 2:  In that EM3 K_ K. G_ (Applicant), USS BATAAN, on active duty, did on board USS BATAAN, located at Naval Station, Norfolk, Virginia, at or near Lilburn, Georgia, on or about 15 March 2000, steal $40.00 cash, the property of EM2 J_ E. B_, U. S. Navy.
	Specification 3:  In that EM3 K_ K. G_ (Applicant), USS BATAAN, on active duty, did on board USS BATAAN, located at Naval Station, Norfolk, Virginia, at or near Stone Mountain, Georgia, on or about 1 April 2000, steal $55.00 cash, the property of EM2 J_ E. B_, U. S. Navy.
NJP for Charge 2: Violation of UCMJ, Article 134:
Specification: In that EM3 K_ K. G_ (Applicant), USS BATAAN, on active duty, did on board USS BATAAN, located at Naples, Italy, on or about December 1999, wrongfully take certain mail matte, to wit:  two letters addressed to EM2 J_ E. B_, U.S. Navy, out of divisional mail box before they were delivered with intent to pry into the business of EM2 J_ E. B_, U. S. Navy.
	Award:  Forfeiture of $563.00 pay per month for 2 months (suspended all except $500.00 for 6 months), restriction and extra duty for 45 days, reduction to E-3.  No indication of appeal in the record.

000601:	Retention Warning:  Advised of deficiency (CO’s NJP held 31 May 2000 for violation UCMJ Article 121 (3 specs) – Larceny of personal Property, and Article 134 – Mail Taking, Opening, Destroying, Stealing), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

010322:	Incident Report from Independent Duty Legalman, dtd March 22, 2001

010327:	NJP for violation of UCMJ, Article 121:
	Specification:  In that EM3 K_ K. G_ (Applicant), U.S. Navy, USS BATAAN, on active duty, did on board USS BATAAN, located at Naval Station, Norfolk, Virginia, on or about 5 February 2000, steal a compact disk player, or a value greater than $100.00, the property of FA J_ F_, U.S. Navy.
	Award:  Forfeiture of $653.00 pay per month for 2 months (1 month suspended for 6 months), restriction for 60 days (15 days suspended for 6 months), reduction to E-3.  No indication of appeal in the record.

010413:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service under other than honorable conditions by reason of misconduct due to pattern of misconduct and misconduct due to commission of a serious offense.

010413:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

010507:	Commanding Officer, USS BATAAN (LHD 5), to Commander, Amphibious Group TWO, that the Applicant be discharged under other than honorable conditions by reason of misconduct due to a pattern of misconduct, and misconduct due to a commission of a serious offense.  Commanding Officer’s comments:  “All reasonable available attempts to rehabilitate EMFN G_ (Applicant) have been unsuccessful.  He apparently is incapable of adhering to the rules and regulations of this command and the United States Navy, and is simply unwilling to conduct himself in a manner conducive to good order and discipline.  His conduct falls within the parameters of references (a) and (b).  I therefore strongly recommend that EMFN G_ (Applicant) be separated from the naval service and that he receives an Other Than Honorable characterization of service.”

010523:	Commander, Amphibious Group TWO, authorize the Commanding Officer, USS BATAAN (LHD 5) that the Applicant will be discharge under other than honorable conditions by reason of misconduct.

Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010621 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).  

In the Applicant’s case, the Board found no credible evidence in the record nor did he offer any evidence to support his assertions that there was impropriety in his nonjudicial punishment nor is an upgrade of his discharge warranted.  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 a retention warning and two nonjudicial punishment proceedings for four violations of UCMJ Article 121 (larceny) and one violation of Article 134 (taking mail matter).  A punitive discharge is authorized under the UCMJ for violations of Articles121 and 134.  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 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) and Article 134 (taking mail matter).

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