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NAVY | DRB | 2000_Navy | ND00-00874
Original file (ND00-00874.rtf) Auto-classification: Denied


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

ex-SA, USN
Docket No. ND00-00874

Applicant’s Request
The application for discharge review, received 000707, 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 VETERANS OF FOREIGN WARS as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010201. 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/IN LIEU OF TRIAL BY COURT MARTIAL, authority: NAVMILPERSMAN, Article 1910-106 (formerly 3630650).
PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

 1. Was unfairly giving a OTH by command because of writing of bad checks I was unfairly treat at last command because of what I did. My chief was telling the whole hold company about my problems.

2..(VFW ISSUE) The applicant enlisted in the United States Navy on June 11, 1998. He contends he was treated unfairly and was never offered counsel. He did state in his release papers he did not wish to have counsel. We feel he was not guided properly as military law allows an individual. The applicant realize a total of 22 returned checks were negotiated and returned for non-sufficient funds there is no evidence of record to show any class or counseling was offered for personal finance. We refer this case to the Board for their careful and compassionate consideration and request the applicant's discharge be reviewed for a General Discharge Under Honorable Conditions.

 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                        None
         Inactive: USNR (DEP)     980603 - 980610  COG

 Period of Service Under Review :
Date of Enlistment: 980611               Date of Discharge: 990512

 Length of Service (years, months, days):

         Active: 00 10 22
         Inactive: None

 Age at Entry: 21                          Years Contracted: 4

Education Level: 12                        AFQT: NMA

 Highest Rate: OSSA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMA                  Behavior: NMA             OTA: NMA

 Military Decorations: None

 Unit/Campaign/Service Awards: None

Days of Unauthorized Absence: 10

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

UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL, authority: NAVMILPERSMAN, Article 1910-106 (formerly 3630650).

 Chronological Listing of Significant Service Events :

980612:  Retention warning, despite your fraudulent induction as evidenced by your failure to disclose required basic enlistment eligibility information. This decision is based on the information you provided the RECRUIT QUALITY ASSURANCE INTERVIEWER and if it is found that additional information has not been disclosed you could be subject to other judicial or administrative proceedings. : Driving without license, 11/95 JACKSONVILLE, FL. Paid $200, Dependent Child not Documented. Advised of deficiency and issued discharge warning.

981229:  UA 0730 981229 to 1100 990107 (9days/R).

990104:  Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 107: Did on or about 981027, with intent to deceive, sign an official document, to wit: Sharecheck Forger Affidavit which document was totally false; violation of the Uniform Code of Military Justice (UCMJ) Article 123a: (22 Specifications), Wrongfully and unlawfully uttering checks.

990112:  UA 0730 990112 to 1300 990113 (1day/R)

990415:  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 offenses with which he was charged, and admitted he was guilty of all the charges preferred against him. Specifically, he admitted to violating UCMJ, Article: 107, and 123. 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.

990430:  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 990512 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 that the applicant stated he understood the elements of the offenses with which he was charged, and admitted he was guilty of all the charges preferred against him. Specifically, he admitted to violating UCMJ, Article: 107, and 123 (22 specifications). The applicant could have faced a court martial conviction which may have resulted in a Bad Conduct Discharge. Instead, the applicant’s command approved the applicant’s request for separation in lieu of a trial by court martial under other than honorable conditions. The Board found that the applicant is deserving of a characterization under other than honorable conditions. No relief will be granted based on this issue.

In the applicant’s issue 2, the applicant contends that he was not offered proper counsel. The Board found that the applicant was offered proper counsel and cited the applicant’s signatures attesting to this fact. The applicant also contends that he was never offered class or counselings in personal finances. The military is not required to counsel individuals in personal finance. The Board found the command properly discharged the applicant for violating articles 107 and 123 for signing an official document (a sharecheck) with intent to deceive and for unlawfully uttering 22 checks, respectively. The applicant admitted guilt to these offenses and must accept the consequences of his actions. Relief is denied.

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 any 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 15560C), Change 18, effective
12 Dec 1997 until 10 July 2000, Article 1910-106 (formerly 3630650), SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

B. A punitive bad conduct discharge may be adjudged for violation of the Uniform Code of Military Justice, Article 107, false official statement 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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