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NAVY | DRB | 2000_Navy | ND00-00355
Original file (ND00-00355.rtf) Auto-classification: Denied


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

ex-RMSR, USN
Docket No. ND00-00355

Applicant’s Request
The application for discharge review, received 000119, 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 000824. 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.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. My discharge was inequitable because it was based on one isolated incident in 37 months of service.

2. All charges against me, except possession of stolen property, are inadequate charges. If I had property that was stolen and knew the items were stolen, I could not justly be held guilty of the other charges.

3. Due to my youth I was coerced by NIS into possibly seeing, that I could look back and notice that some of the items were stolen. This was used against me even though I was unaware at the time that anything I purchased had been stolen.


 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)     910326 - 910521  COG

 Period of Service Under Review :
Date of Enlistment: 910522               Date of Discharge: 940630

 Length of Service (years, months, days):

         Active: 03 01 09
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 71

 Highest Rate: RMSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.90 (2)    Behavior: 3.90 (2)                OTA: 3.90

 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, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

940512:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 92.
         Specification: Failure to obey a lawful general regulation
         Charge II: violation of the UCMJ, Article 134 (3 specs):
         Specifications: Wrongfully receiving stolen property.
         Finding: to Charge I and II and specifications thereunder, guilty.
         Sentence: Forfeiture of $554.00, confinement for 30 days, reduced to RMSR.
         CA action 940513: Sentence approved and ordered executed.
        
940512:  Applicant to confinement.

940605:  Applicant released from confinement and return to full duty status.

940515:  Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of misconduct due to the Commission of a serious offense. [Extracted from CO's message dated 21May94.]
940515:          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. [Extracted from CO's message dated 21May94.]

940521:  Commanding officer recommended discharge under Other Than Honorable conditions by reason of misconduct due to the Commission of a serious offense.

940602:  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 940630 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 issues 1, 2 and 3, the Board determined these issues are without merit. The applicant was found guilty of at Summary Court Martial of violation of UCMJ, Article 92 and 3 specifications of Article 134, Wrongfully receiving stolen property. Relevant and material facts, stated in a court-martial specification, are presumed as established facts, by the Board. Therefore, clemency is the only reason the Board can consider for recharacterizing the applicant’s discharge. The applicant provided no documentation for the Board to review, for consideration of clemency. The discharge was proper and equitable. Relief denied.

 Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 5, effective
05 Mar 93 until 21 Jul 94, 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 92, failure to obey a lawful order and for Article 134, Knowingly receiving stolen property, 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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