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NAVY | DRB | 2000_Navy | ND00-00693
Original file (ND00-00693.rtf) Auto-classification: Denied


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

ex-DN, USN
Docket No. ND00-00693

Applicant’s Request
The application for discharge review, received 000508, 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 001206. 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/Separation in lieu of trial by court martial, authority: NAVMILPERSMAN, Article 3630650.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

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

2. Character references educational achievements post service letters will follow.

3. Had two Honorable Discharges.

4. Maintained a 3.94 evaluation through-out enlistment.

5. Served in Beirut-Lebanon.

6. I was lead to believe by JAG officer that discharge will turn into Honorable in 6 mos.

 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: USN                        790625 - 840724  HON
                  USN                       840725 - 881013  HON
         Inactive: USNR (DEP)     780831 - 790625  COG

 Period of Service Under Review :
Date of Enlistment: 881014               Date of Discharge: 910911

 Length of Service (years, months, days):

         Active: 02 10 28
         Inactive: None

 Age at Entry: 26                          Years Contracted: 4

 Education Level: 12                        AFQT: 46

 Highest Rate: DT2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.90 (2)    Behavior: 3.90 (2)                OTA: 4.00

 Military Decorations: None

 Unit/Campaign/Service Awards: MUC, NER, NDSM, GCM, OSR, SSDR, NEM

Days of Unauthorized Absence: 340

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

UNDER OTHER THAN HONORABLE CONDITIONS/Separation in lieu of trial by court martial, authority: NAVMILPERSMAN, Article 3630650.

 Chronological Listing of Significant Service Events :

900628:  Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 92: Violate a lawful general order on 1Dec89 to 30Apr90, by wrongfully making unauthorized personal long distance telephone calls on a United States Government telephone of a value of $5,300.00, violation of the UCMJ Article 134 (3 specs): (1) Willfully and unlawfully conceal a public record, to wit: telephone bill for the month of March 1990, (2) From 1 December 1989 to about 30 April 1990 with intent to defraud, falsely pretend to Telefonica de Espana that he was authorized to make personal long distance telephone calls on a United States Government telephone, then knowing that the pretenses were false, and by means thereof, did wrongfully obtain telephone services from Telefonica de Espana, of a value of $5,300.00, (3) From 1 December 1989 to 30 April 1990, with intent to defraud, falsely pretend to Telefonica de Espana that he was authorized to make personal long distance telephone calls on a United States Government telephone, then knowing that the pretenses were false, and by means thereof, did wrongfully obtain telephone services from the United States Government, of a value of about $5,300.00.

 900629:  A pplicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial. He consulted with counsel and was fully advised of the implications of his request. The applicant stated he understood the elements of the offense(s) with which he was charged, and admitted he was guilty of all the charges preferred against him. Specifically, he admitted to violating UCMJ, Article 92 and 80: Failure to obey a lawful order or regulation and attempt to conceal government documents. The applicant stated he was completely satisfied with the counsel he had received. The applicant understood that if discharged under other than honorable conditions, it might deprive him of virtually all veterans' benefits based upon his current enlistment, and that he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received therefrom may have a bearing.

900716:  The commanding officer, exercising GCMCA, approved the request for an administrative separation in lieu of a trial by court-martial, and directed applicant’s discharge.

900727:  Applicant to unauthorized absence 0715, 27Jul90.

910508:  Applicant declared a deserter.

910702:  Applicant from unauthorized absence 1130, 2Jul91 (340 days/surrendered).

 910816:  A pplicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial. He consulted with counsel and was fully advised of the implications of his request. The applicant stated he understood the elements of the offense(s) with which he was charged, and admitted he was guilty of all the charges preferred against him. Specifically, he admitted to violating UCMJ, Article 86: Unauthorized absence from 28Jun90 to 2Jul91. The applicant stated he was completely satisfied with the counsel he had received. The applicant understood that if discharged under other than honorable conditions, it might deprive him of virtually all veterans' benefits based upon his current enlistment, and that he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received therefrom may have a bearing.

910820:  Medical Examination: Applicant evaluated by medical officer and found to be of normal mental status – no documented mental health/psychiatric illness in the past. Psychiatric evaluation not required. Applicant understands the charges preferred against him and is capable in assisting in the preparation of his defense. Applicant is fit for duty and should be held responsible for his actions.

910822:  The commanding officer, exercising GCMCA, approved the request for an administrative separation in lieu of a trial by court-martial, and directed applicant’s discharge.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 910911 under other than honorable conditions in lieu of a trial by court-martial (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 the applicant’s issue 1, the Board found the applicant implies that a permissive doctrine exists whereby one in the military is allowed a “single misdeed”. 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 admitted guilt to three specifications of making unauthorized long distance telephone calls of a value of $5,300. Additionally, the applicant was UA for 340 days. 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.

The applicant states in issue 2 that “c haracter references educational achievements post service letters will follow.” The Board never received any additional information from the applicant, therefore no relief is granted based on this issue.

In the applicant’s issue 3, the applicant’s two Honorable discharges have no bearing on the characterization of the latest enlistment. No relief warranted.

 In response to the applicant’s issues 4 and 5, the Board found that the applicant’s serious misconduct outweigh the positive aspects of his service and that the service is accurately characterized as having been performed under other than honorable conditions. No relief will be granted based on this issue.

In the applicant’s issue 6, 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. The Board reviews the propriety (did the USN/USMC follow its own rules in processing the applicant for discharge) and equity (did the applicant receive a discharge characterization in keeping with the USN/USMC guidance or was the characterization typical of other service members being separated for the same reason) of each applicant’s discharge. Finally, the Board is authorized to consider post-service factors in the recharacterization of a discharge (what has the applicant done since discharge to become a contributing member of his community and to society in general). At this time, the applicant has not provided any documentation of good character and conduct. Therefore no relief will be granted.

 Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560A), Change 7, effective
25 May 89 until 14 Aug 91, Article 3630650, PROCEDURES FOR PROCESSING ENLISTED PERSONNEL FOR SEPARATION IN LIEU OF TRIAL BY COURTMARTIAL.

B. A punitive bad conduct discharge may be adjudged for violation of the Uniform Code of Military Justice, Article 92, violate a lawful general order upon conviction by a Special or General Court-Martial, in accordance with the Manual for Courts-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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