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NAVY | DRB | 2000_Navy | ND00-00227
Original file (ND00-00227.rtf) Auto-classification: Denied


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

ex-SHSR, USN
Docket No. ND00-00227

Applicant’s Request
The application for discharge review, received 991203, 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 listed the American Legion as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000803. 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. (Equity Issue) As the documentary evidence of record supports, this former member opines that his post-service conduct has been sufficiently creditable to warrant the Board's clemency relief as authorized under provisions of SECNAVINST 5420.174C, enclosure (1), paragraph 9.3.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214 (2 copies)
Character reference from Chief of Police dated February 16, 1999
Police record check dated February 16, 1999
Character reference from Reverend of St John Baptist Church
Character reference dated March 13, 1999
Statement from applicant

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     860226 - 860722  COG

 Period of Service Under Review :
Date of Enlistment: 860723               Date of Discharge: 900209

 Length of Service (years, months, days):

         Active: 03 06 17
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 45

 Highest Rate: SHSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.40 (2)    Behavior: 3.27 (2)                OTA : 3.50

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR

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 :

880520:  NJP for violation of UCMJ, Article 121: Steal three bottles of Vanderbilt perfume, of some value, the property of the U.S. Government on 9May88.
         Award: Forfeiture of $376 per month for 2 months, restriction and extra duty for 25 days, reduction to SHSA. No indication of appeal in the record.
880522:  Retention Warning: Advised of deficiency (Larceny on or about 9 May 1988 of 3 bottles of perfume, of some value, the property of U.S. Government.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

890328:  NJP for violation of UCMJ, Article 121: Larceny of an ATM card on 22Feb89, violation of UCMJ, Article 128: Assault a PO3 July 1988.
         Award: Forfeiture of $349 per month for 2 months, confinement for 3 days on bread and water, reduction to SHSR. No indication of appeal in the record.
890329:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

890404:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
890511:  An Administrative Board voted 3 to 0 that applicant had committed misconduct due to commission of a serious offense and recommended retention in the naval service.
890516:  Commanding officer concurred with the findings and recommendation of the Admin Board in that applicant be retained in the naval service.

890618:  CNMPC issued a Retention Warning: Advised of deficiency (VUCMJ Art 121 - Larceny of 3 bottles of perfume on 20May88.), advised of consequences of further deficiencies, and issued discharge warning.

891214:  NJP for violation of UCMJ, Article 121 (2 specs): (1) Larceny and wrongful appropriation, on 7Dec89 at 0930, stole one black in color leather jacket (2) Larceny and wrongful appropriation on 20Jul89 stole two barber clippers, two hair cutting shears and various sizes of barber clipper blades of a value of $536.45, violation of UCMJ Article 134: Weapon concealed, carrying, on 11Dec89, to wit: unlawfully carried on his person a concealed weapon, to wit: a 22 caliber black gun.
         Award: Forfeiture of $349.50 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
891220:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
891220:          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.
891229:  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): In view of the offenses evidenced in paragraph 1d it is recommended that SHSR (applicant) be separated with an other than honorable discharge.

900131:  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 900209 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).

In the applicant’s issue 1, there is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the Service. However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (D). Those factors include, but are not limited to, the following: evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct. At this time, the applicant has not provided ample documentation of good character and conduct. Therefore no relief will be granted. The applicant is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15-years from the date of discharge.

 Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560A), Change 8, effective
21 Aug 89 until 14 Aug 91, 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 [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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