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NAVY | DRB | 1999_Navy | ND99-01240
Original file (ND99-01240.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND99-01240

Applicant’s Request
The application for discharge review, received 990923, requested that the characterization of service on the discharge be changed to general/under honorable conditions. 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 000606. 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 – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1. I was discharged for something I did not do. A VCR was stolen from the ship by an acquaintence of mine. When he was caught with it, he told them that he had gotten it from me. I knew the circumstances of the theft because he told me about it when I came back from being on leave. He still swore that I was the one who had taken it and the only evidence they had that I was the one who had taken it was his testimony. I would like to have my discharge upgraded based on these facts.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     850423 - 850606  COG

 Period of Service Under Review :
Date of Enlistment: 850607               Date of Discharge: 861125

 Length of Service (years, months, days):

         Active: 01 05 19
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 70

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.80 (2)    Behavior: 2.60 (1)                OTA: 2.60

 Military Decorations: None

 Unit/Campaign/Service Awards: BEA

Days of Unauthorized Absence: 23

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

851010:  NJP for violation of UCMJ, Article 134 (2 specs): (1) Wrongfully and falsely make an Armed Forces liberty pass, (2) Wrongfully sell an Armed Forces liberty pass.
         Award: Forfeiture of $310 per month for 2 months, extra duty for 14 days, reduction to SR. No indication of appeal in the record.
851121:  NJP for violation of UCMJ, Article 92 (4 specs): (1) Fail to obey a lawful order by having civilian clothes in possession without authority, (2) Fail to obey a lawful order by possessing an unlawful weapon, (3) Fail to obey a lawful order by sleeping in class, (4) Fail to obey a lawful order by not returning to Bldg 304, legal office as ordered.
         Award: Forfeiture of $310 per month for 1 month, correctional custody for 30 days. No indication of appeal in the record.
860919:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0745, 4Aug86 until 1330, 27Aug86 (23 days/surrendered).
         Award: Forfeiture of $300 per month for 2 months, restriction and extra duty for 35 days, reduction to SR. No indication of appeal in the record.
861010:  NJP for violation of UCMJ, Article 121: Larceny.
         Award: Forfeiture of $200 per month for 2 months, restriction and extra duty for 30 days. No indication of appeal in the record.
861017:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to the commission of a serious offense.
861017:          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.
861024:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to the commission of a serious offense.

861116:  CNMPC 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 861125 under other than honorable conditions for misconduct due to commission of a serious offense (A and B). The Board presumed regularity in the conduct of governmental affairs (C). 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 (D and E).

In response to the applicant’s issue 1, the Board found that the applicant was in fact discharged for something he did. The applicant was taken to mast on 4 separate occasions for offenses he committed. Several offenses were serious enough that he could have been court martialed for them. Instead, the Navy administratively discharged him under other than honorable conditions. The applicant’s service is accurately characterized as having been served under other than honorable conditions. Relief is denied.

 Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560A, Change 4/86, effective
06 Oct 86 until 14 Dec 86), Article 3630600, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.
B. Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article [e.g., 86, for unauthorized absence for a period in excess of 30 days] if adjudged at a Special or General Court-Martial.
C. 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.

D. 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.

E. 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 view DoD Directive 1332.28 and other Decisional Documents by going online at " afls14.jag.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:

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


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