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NAVY | DRB | 2001_Navy | ND01-00080
Original file (ND01-00080.rtf) Auto-classification: Denied


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


ex-EOCA, USN
Docket No. ND01-00080

Applicant’s Request
The application for discharge review, received 001019, 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 010406. 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 (verbatim)

1. My discharge was inequitable because it was based on other charges that I didn't comit. I confesed to what was done to me, and wanted a chance to prove my inocenet of the other charges. I also wanted to prove that I could continue to serve in the millitary, as a professional service man.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of letter of commendation from March 1993 to October 1993
Copy of letter of appreciation from December 1990 to May 1991
 Copy of certificate of appreciation dated July 15, 1991

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
          Inactive: USNR (DEP)     891216 - 900325  COG
Period of Service Under Review :
Date of Enlistment: 900326               Date of Discharge: 940110

 Length of Service (years, months, days):
         Active: 03 09 15
          Inactive: None
Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 31
Highest Rate: EOCN

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 3.30 (4)    Behavior: 3.45 (4)                OTA: 3.35

 Military Decorations: None
Unit/Campaign/Service Awards: NER (2), NDSM, SASM with 2 Bronze Stars, FMFCOI, KLM, SSDR (3), NUC

 Days of Unauthorized Absence: 5
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 :

921021:  Applicant to unauthorized absence 0630, 21Oct92.
921026:  Applicant from unauthorized absence 0630, 26Oct92 (5 days/surrendered).
920207:  NJP for violation of UCMJ, Article 86: Unauthorized absence on 17Dec91, violation of UCMJ, Article 107: False official statement on 17Dec91.
         Award: Forfeiture of $100 per month for 1 month. Forfeiture suspended for 6 months. No indication of appeal in the record.
931201:  NJP for violation of UCMJ, Article 121 (5 specs):
          Specification 1: Larceny of a Goldstar VCR from the Navy Exchange on 19Oct93.
         Specification 2: Larceny of a Magavox VCR from the Navy Exchange on 19Oct93.
          Specification 3: Larceny of a Hitachi VCR from the Navy Exchange on 19Oct93.
         Specification 4: Larceny of a JVC/CD player from the Navy Exchange on 19Oct93.
         Specification 5: Larceny of a Pioneer cassette deck on 7Oct93.
         Award: Forfeiture of $456 per month for 2 months, restriction and extra duty for 45 days, reduction to EOCA. No indication of appeal in the record.
931202:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
931202:          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.
931209:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

931227:  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 940110 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).
In response to the applicant’s issue, the Board found nothing in the records, nor did the applicant provide anything to indicate or to show that there exists an error of fact, law, procedure, or discretion associated with his discharge at the time of its issuance, and that his rights were prejudiced thereby. Furthermore, there has been no change in policy by the Navy, or higher authority, made expressly retroactive to the type of discharge received by the applicant.

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 (E). 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) and certification of non-involvement with civil authorities (police records check) 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 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 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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