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NAVY | DRB | 2000_Navy | ND00-00036
Original file (ND00-00036.rtf) Auto-classification: Denied


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

ex-SN, USN
Docket No. ND00-00036

Applicant’s Request
The application for discharge review, received 991013, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a personal appearance hearing before a travel panel closest to West Covina, CA. The applicant listed the American Legion as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000720. 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 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. My undesirable discharge was inequitable because it was based on one isolated incident in 28 months of service with no other adverse action.

2. (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Letter from Registrar of California State Polytechnic University dated September 14, 1999
Copy of Memorandum dated October 6, 1998
Copy of Memorandum dated October 7, 1998
Copy of character witness from a MMFR and a SN dated October 29, 1998
Copy of pages from record of trial by summary court-martial (2 pages)
Copy of Memorandum from Staff Judge Advocate dated September 25, 1998
Copy of acknowledgment of rights and waiver dated September 23, 1998
Copy of administrative board procedure letter dated September 25, 1998
One page of administrative board procedure acknowledgement letter
Copy of charge sheet dated September 24, 1998

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     960604 - 960624  COG

 Period of Service Under Review :
Date of Enlistment: 960625               Date of Discharge: 981221

 Length of Service (years, months, days):

         Active: 02 05 27
         Inactive: None

 Age at Entry: 20                          Years Contracted: 8

 Education Level: 13                        AFQT: 63

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (2)    Behavior: 3.50 (2)                OTA: 3.11

Military Decorations: None

 Unit/Campaign/Service Awards: None

Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

 Chronological Listing of Significant Service Events :

980925:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 134 (4 specs):.
         Specification 1: Wrongfully violate section 4463 of the California Vehicle Code of 1959, by falsifying his privately-owned vehicle's license plate, with intent to defraud, to wit: wrongfully displaying the registration expiration month as "SEP" on 20Sep98.
         Specification 2: Wrongfully use with intent to deceive official temporary vehicle identification pass number 0203 on 20Sep98.
         Specification 3: Wrongfully steal certain mail matter, to wit: a government check addressed to Radioman Seaman on 11Sep98.
         Specification 4: Wrongfully steal certain mail matter, to wit: a government check addressed to Gunner's Mate Seaman on 24Jul98.
         Finding: to Charge I and the specifications thereunder, guilty.
         Sentence: Confinement for 10 days.
         CA action 981006: Sentence approved and ordered executed.

980925:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
980925:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

981110:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed a serious offense, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

990223:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

981215:  Commander, Naval Special Warfare Command 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 981221 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’s first issue states: “My undesirable discharge was inequitable because it was based on one isolated incident in 28 months of service with no other adverse action.” The applicant’s claim that his discharge should be upgraded as it was an isolated incident is without merit. The applicant was convicted at court martial of violating four specifications of Article 134. The charges are considered serious offenses and warrant consideration for discharge. The applicant was afforded due process and his case was reviewed by an Admin Discharge Board which voted unanimously to recommend the applicant for an other than honorable discharge. Relief is not warranted.

The applicants second issue states: “(Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.” The NDRB did not find the applicant’s post service conduct significant enough to upgrade the discharge assigned. Relief not warranted.

Pertinent Regulation/Law (at time of discharge)
 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective
12 Dec 97 until Present, Article 1910-142 [formerly 3630605]. SEPARATION 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 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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