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Docket No. ND06-00466

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

FOR OFFICIAL USE ONLY

ex-AOAR, USN
Docket No. ND06-00466

Applicant’s Request

The application for discharge review was received on 20060210.  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 20061130.  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 characterization 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 - ISSUES AND DOCUMENTATION

Decisional Issues:

Equity:  Isolated incident
Impropriety/Equity: Dual punishment and disproportionate 

Documentation

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

Applicant’s DD Form 214  (Service 2)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19990722 - 19991107	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19991108		Date of Discharge:  20010201

Length of Service (years, months, days):

	Active:    01  02  23  (Does not include lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  15 days
	Confinement:		  25 days

Age at Entry:  17 (Parental Consent)

Years Contracted:  4 

Education Level:  12				AFQT:  32

Highest Rate:  AOAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.0 (2) 		Behavior:  1.0 (2) 			OTA:  1.67

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  None

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: 

000705:	Applicant to unauthorized absence at 0615 on 000705.

000720:	Applicant from unauthorized absence at 0615 on 000720 (16 days/surrendered).

000911:	Summary Court-Martial.
	Charge:  violation of the UCMJ, Article 86 (1 Spec):  UA from unit 000705 to 000720.  Plea: Guilty	Findings:  Guilty
	Violation of the UCMJ, Article 123 (2 Specs):  With intent to defraud, forge (2) checks on or about 000402.  Plea:  Guilty	Findings:  Guilty
	Violation of the UCMJ Article 121 (2 Specs):  Wrongfully steal $350.00 on 000409.
	Plead: Spec 1 guilty	Findings:  Guilty
	Plead: Spec 2 not guilty	Findings:  Dismissed without prejudice
	Violation of the UCMJ Article 134 (1 Spec):
	Plead:  not guilty	Findings:  Dismissed without predjudice
	Finding: to Charge and the specification thereunder, guilty.
	Sentence: Forfeiture of $620.00 per pay for 1 month, reduced to E-1.  Confinement for 30 days.
	CA action 000911:  Sentence approved and ordered executed.
	
001005:	Applicant released from confinement after serving 25 days of sentence.  Given 5 days credit for good behavior.

001211:	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.

001211:	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.

001211:	Commanding Officer, USS PELELIU (LHA 5), recommended to Commander, Amphibious Group THREE that the Applicant be discharged under other than honorable conditions by reason of misconduct due to commission of a serious offense.  Commanding Officer’s comments:  “AOAR M_ (Applicant) was convicted at Summary Court-Martial for unauthorized absence, theft and forgery of another’s personal checks.  This behavior is absolutely intolerable and flies in the face of the Navy’s core values.  I simply cannot allow AOAR M_ to continue on active duty given this behavior.  I cannot afford to have a Sailor who demonstrates such extremely poor judgement.  It is my strongest recommendation that AOAR M_ be discharged from the Naval Service with a discharge characterized as Other Than Honorable.  AOAR M_ is not recommended for reenlistment and has absolutely no potential for future service in any military organization.”

010112:	COMPHIBGRU THREE, directed that the Applicant be discharged under other than honorable conditions by reason of misconduct due to commission of serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010201 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 Board presumed regularity in the conduct of governmental affairs (E).

The Applicant states his discharge was based on “one isolated incident in 26 months of service” and requests upgrade of the characterization of his discharge to honorable.  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 summary court martial proceeding for violations of UCMJ Articles 86 (unauthorized absence), 121 (larceny), and 123 (forgery).  Violations of Articles 121 and 123 are considered serious offenses for which a punitive discharge is authorized at courts martial.  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 also alleges that his punishment was unjust because he was punished twice and that his punishment was inequitable because it was disproportionate for the offense.  The Board reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis.  If such a review reveals an impropriety or inequity, relief is in order.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service.  Based upon available records, nothing indicates that the Applicant’s punishment at summary courts martial or his subsequent discharge was in any way inconsistent with the standards of discipline in the United States Navy.  A preponderance of the evidence reviewed supports the conclusion that the Applicant committed a serious offense, that his subsequent separation from the Naval service was appropriate, and that an other than honorable conditions characterization was warranted.  As such, relief is 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.  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 123 (forgery).

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.

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.

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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 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