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NAVY | DRB | 2000_Navy | ND00-00079
Original file (ND00-00079.rtf) Auto-classification: Denied


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

ex-FR, USN
Docket No. ND00-00079

Applicant’s Request
The application for discharge review, received 991019, 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 000713. 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 have been a good citizen since discharge, aswauth. [A92.22] Since having been discharged from the Navy I have worked steadily, provided for my family, participated in community activities, and been an overall good citizen. I abide by the laws and respect them.

2. My record of court-martial conviction indicates only isolated or minor offenses, aswauth. [A92.26] The offense I committed 8 years ago was an isolated occurrence. It was not something I had ever done before or am proud of At the time, my thinking was unclear due to the ill-health and subsequent recent death of my mother.

3. My ability to serve was impaired by my youth and immaturity, aswauth . [A93.02]
At the time of the incident I was 22 and very immature. I didn't think for myself at the time and made the mistake of following others' actions. I attribute this not only to my immaturity but also to the recent death of my mother and not being mature enough to know how to handle such a loss.

4. My ability to serve was impaired because of marital and family problems , aswauth . [A93.08] Once again, as I've listed above, the death of my mother was impairing any clear thought process.

5. Personal problems impaired my ability to serve, aswauth . [A93.10]

The recent death of my mother impaired my ability to act to the standards of the U.S. Navy. I acted very unlike myself and fell into the foolishness of the moment.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Letter of reference from the Pines Mobile Country Club resident manager dated September 13, 1999
Letter of reference from son's Boy Scout Leader dated September 15, 1999
Letter of reference from my spouse dated October 1, 1999
Copy of Temporary Assignment Evaluation dated September 8, 1998
License and certificate of marriage
Joint Legal, Child Custody paperwork
Thirty-three pages from service record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)              910611 - 910617  COG

 Period of Service Under Review :
Date of Enlistment: 910618               Date of Discharge: 911113

 Length of Service (years, months, days):

         Active: 00 04 26
         Inactive: None

 Age at Entry: 22                          Years Contracted: 8

 Education Level: 12                        AFQT: 45

 Highest Rate: FR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF                           Behavior: NMF             OTA : NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

Days of Unauthorized Absence: None

 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 :

911003:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 121.
         Specification 1: Steal one blue nylon camera bag containing one Canon EOS Rebel 35-88 mm camera, a collapsible lens box, pamphlets and photos on 9Sep91, a value of $800.00, the property of Fireman Recruit
         Specification 2: Steal U. S. currency of a value of $332.00, the property of Fireman Recruit on 9Sep91.
         Finding: to Charge I and the specifications thereunder, guilty.
         Sentence: Forfeiture of $464.00, confinement for 20 days.

911017:  Applicant completed confinement.

911017:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
911017:          Applicant advised of his rights and having elected not to consult 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.
911021:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

911104:  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 911113 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).

The Board determined that relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts. With respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency. The applicant's case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The NDRB found the applicant’s service record devoid of any mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded.

In response to applicant’s issue 1, the NDRB is authorized to consider post-service factors in the recharacterization of a discharge. The applicant must be aware that there is no law or regulation which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the service. Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, may be considered by the NDRB. The applicant did submit some post-service documentation, however, the applicant’s efforts need to be more encompassing than those provided. The applicant should have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service and certification of non-involvement with civil authorities in order for consideration for clemency based on post-service conduct. At this time the applicant has not provided sufficient documentation of good character and conduct. Therefore no relief will be granted.

In response to applicant’s issue 2, the applicant implies that a permissive doctrine exists whereby one in the military is allowed an "isolated" incident. The Board believes that the applicant is confusing this with the civilian world wherein some offenses are treated with leniency because they are a first time incident on an otherwise clear record. No such leniency exists in the military. The applicant is responsible for his actions and must accept the consequences of his misdeeds. The Board will not grant relief on the basis of this issue.
In response to applicant’s issue 3, the Board found that the applicant's age, education level, and test scores qualified him for enlistment. While he may feel that his immaturity was a factor that contributed to his action, the record clearly reflects his willful disregard for the requirements of military discipline and demonstrated that he was unfit for further service. The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions.

In response to applicant’s issues 4 and 5, while the Board sympathizes with the applicant, the loss of his mother does not exculpate the applicant from his misconduct of record. The Board will not grant relief on the basis of this issue.

 Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until
04 Mar 93, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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 121, for larceny, 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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