Search Decisions

Decision Text

NAVY | DRB | 1999_Navy | ND99-00125
Original file (ND99-00125.rtf) Auto-classification: Denied


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

ex-ADAN, USN
Docket No. ND99-00125

Applicant’s Request
The application for discharge review, received 981102, requested that the characterization of service on the discharge be changed to honorable. The applicant requested 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 991004. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service. 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.

The NDRB did note an administrative error on the DD Form 214 issued on 10 April 1986. Block 12a, Date Entered AD This Period should read: “83 FEB 17” vice “81 DEC 11”, Block 12c, Net Active Service This Period, should read: "03 01 23" vice "04 03 30", Block 12d, Total Prior Active Service, should read: "00 05 24" vice
"00 00 00" and Block 12e, Total Prior Inactive Service, should read: "00 10 02" vice "00 01 20". This DD Form 214 should be corrected or reissued as appropriate. Additionally, NDRB noted an administrative error on the DD Form 214 issued on 11 November 1995. Block 12d, Total Prior Active Service, should read: "03 01 23" vice "04 09 24" and Block 18, Remarks, should contain the following entry: "CONTINUOUS HONORABLE ACTIVE SERVICE FROM 86 APR 11 UNTIL
92 OCT 12.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. The Other Than Honorable Discharge that I had received had been due to the lack of availability of legal counsel and proper guidance.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214 (2 copies)
Copy of pretrial agreement dated 22 August 1995
Copy of Enlisted Performance Record
Copy of applicant's social security card

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        901221 - 921012  HON
                  USN                       860411 - 901220  HON
                  USNR             830218 - 860410  HON
                  USNR             811211 - 820604  HON
Inactive: USNR            811021 - 811210  Reported ACDUTRA
                   USNR             820605 - 830217  Reported Active duty

 Period of Service Under Review :
Date of Enlistment: 921013 *      Date of Discharge: 951101

 Length of Service (years, months, days):

         Active: 03 00 19
         Inactive: None

 Age at Entry: 31                          Years Contracted: 2 (17 months extension)

 Education Level: 12                        AFQT: 28

 Highest Rate: AD2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4.00 (3)    Behavior: 4.00 (3)                OTA: 4.00

 Military Decorations: None

 Unit/Campaign/Service Awards: GCM (2), NDSM, JMU, SASM, MUC, OSR (5)

 Days of Unauthorized Absence: None

 * Reenlistment contract not contained in record - extracted from CO, NAVSTA Rota ltr of 29 Aug 95.

 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 :

950828:  NJP for violation of UCMJ, Article 81: Conspire with Aircrew Survival Equipmentman Second Class to commit larceny of housing allowances of a value of $3179.91 on 18Aug894 to 17Feb95, from the government by failing to inform U.S. Navy that he shared a residence with Aircrew Survival Equipmentman Second Class, another military service member entitled to housing allowances, violation of UCMJ Article 107 (2 specs): (1) Sign an official record, with intent to deceive on 18 August 1994, to wit: Individual Overseas Housing Allowance Report, (2) Sign an official record with intent to deceive on 1 September 1994, to wit: a U.S. Government Lease Contract, violation of UCMJ Article 121: Steal $3,179.91, the property of the U.S. Government from 18 August 1994 to 17 February 1995, violation of UCMJ, Article 132: For the purpose of obtaining the approval, allowance, and payment of a claim against the United States in the amount of $1,055.61 from 18 August 1994 to 17 February 1995, use a certain writing, to wit: Individual Overseas Housing Allowance Report, which said writing, as he, the said Aviation Machinist's Mate Second Class, then knew, contained a statement that he rented a dwelling and resided alone, which statement was false and fraudulent in the he shared a dwelling with a U.S. Navy member entitled to and receiving a housing allowance, and was then known by the said Aviation Machinist's Mate Second Class, to be false and fraudulent.
         Award: Forfeiture of $661.20 per month for 2 months, restriction for 60 days, reduction to AD3. No indication of appeal in the record.
950828:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
950828:  Applicant advised of his rights and having consulted 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.
950829:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. Commanding officer’s comments verbatim: "Originally charges of conspiracy, fraud, and larceny were referred to a special court-martial in Petty Officer's (applicant's) cases. As a result of a pre-trial agreement submitted by Petty Officer (applicant) and his counsel, I entertained non-judicial punishment in his case and accepted his request to waive his administrative board and be discharged from the naval service with an Other than Honorable discharge.
         Based on the serious nature of the offenses which I found Petty Officer (applicant) guilty of at non-judicial punishment and his agreement to waive his administrative hearing in lieu of a special court-martial, I strongly recommend that he be discharged from the naval service with an Other than Honorable Discharge."

950928:  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 951101 under other than honorable conditions for misconduct due to commission of a serious offense (A). The Board presumed regularity in the conduct of governmental affairs (B). 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 the other than honorable discharge was due to the lack of availability of legal counsel and proper guidance. The NDRB found this an unfounded claim. In fact, the applicant was represented by counsel and entered a plea that “all charges (against the applicant) referred to a special court martial will be withdrawn and adjudicated at captain’s mast instead”(950822). Additionally, the applicant consulted with qualified counsel on 950828 and acknowledged such on Statement of Awareness and Request for, or Waiver of Privileges dtd 950828 regarding his administrative processing for separation. Relief not warranted.

 Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

B. 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.

C. 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.

D. 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 obtain a copy of DoD Directive 1332.28 by writing to:
                  DA Military Review Boards Agency
                  Management Information and Support Directorate
                  Armed Forces Reading Room
                  Washington, D.C. 20310-1809

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
                  Washington Navy Yard
                  720 Kennon Street SE Rm 309
                  Washington, D.C. 20374-5023     

Similar Decisions

  • NAVY | DRB | 1999_Navy | ND99-01072

    Original file (ND99-01072.rtf) Auto-classification: Denied

    Issues Prior to the documentary discharge review, the applicant introduced no issues as block 8 on the DD Form 293 is blank. I have no choice but to direct his separation with a General discharge, under honorable conditions. You should read Enclosure (5) of the Directive before submitting such a complaint.

  • NAVY | DRB | 2001_Navy | ND01-01115 (1)

    Original file (ND01-01115 (1).rtf) Auto-classification: Denied

    Decision A documentary discharge review was conducted in Washington, D.C. on 020604. 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).Issue 1 states, “My discharge was solely based on one incident in 8 years of service with no other incidents.” The applicant was found guilty at NJP for violation of UCMJ Article 92 (failure to obey a lawful order). Relief is not...

  • NAVY | DRB | 2001_Navy | ND01-01115

    Original file (ND01-01115.rtf) Auto-classification: Denied

    Decision A documentary discharge review was conducted in Washington, D.C. on 020604. 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).Issue 1 states, “My discharge was solely based on one incident in 8 years of service with no other incidents.” The applicant was found guilty at NJP for violation of UCMJ Article 92 (failure to obey a lawful order). Relief is not...

  • NAVY | DRB | 1999_Navy | ND99-01050

    Original file (ND99-01050.rtf) Auto-classification: Denied

    980903: Assistant Secretary of the Navy (Manpower & Reserve Affairs) approved discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense. 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 first issue, he implies that a permissive doctrine exists whereby one in the military is allowed a “single...

  • NAVY | DRB | 2004_Navy | ND04-00775

    Original file (ND04-00775.rtf) Auto-classification: Denied

    The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. Decision A documentary discharge review was conducted in Washington, D.C. on 20041029. Therefore, no relief will be granted.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.

  • NAVY | DRB | 2004_Navy | ND04-00387

    Original file (ND04-00387.rtf) Auto-classification: Denied

    ” _______________________________________________________________________ In accordance with 32 C.F.R., section 724.166; SECNAVINST 5420.174C, enclosure (1), paragraph 1.16, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue in supplement to the Applicant’s petition. 900703: Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.900718: CNMPC directed the...

  • NAVY | DRB | 2000_Navy | ND00-00080

    Original file (ND00-00080.rtf) Auto-classification: Denied

    Decision A documentary discharge review was conducted in Washington, D.C. on 000803. Sentence: Fined $445, attend Alcohol Driver Education Course (Level I-NADSAP) and complete by 5Aug94. 960221: Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.960228: Applicant apprehended by civilian authorities on charges of violation of probation, failure to report and pay court ordered fines...

  • NAVY | DRB | 2002_Navy | ND02-00107

    Original file (ND02-00107.rtf) Auto-classification: Denied

    The discharge shall change to: UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct- commission of a serious offense, authority: NAVMILSPERSMAN, Article 3630600.A personal appearance discharge review was conducted in Washington, D.C. on XXXXXX. PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW Discussion The applicant was discharged on 870529 under other than honorable conditions for misconduct due to the commission of a serious offense (A). However, the Board found that the...

  • NAVY | DRB | 2001_Navy | ND01-00047

    Original file (ND01-00047.rtf) Auto-classification: Denied

    Chronological Listing of Significant Service Events :941114: NJP for violation of UCMJ, Article 92: Violated a lawful general regulation, to wit: Article 1159, U.S. Navy Regulations by possessing a firearm on board a Naval installation on 27Sep94. 951214: An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to a pattern of misconduct, drug abuse and commission of a serious offense, that the...

  • NAVY | DRB | 2000_Navy | ND00-00336

    Original file (ND00-00336.rtf) Auto-classification: Denied

    ND00-00336 Applicant’s Request The application for discharge review, received 000118, requested that the characterization of service on the discharge be changed to general/under honorable conditions. After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge of Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, it is found that (applicant) requests a change of discharge from Other Than Honorable to...