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NAVY | DRB | 2001_Navy | ND01-00721
Original file (ND01-00721.rtf) Auto-classification: Denied


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

ex-MMFR, USN
Docket No. ND01-00721

Applicant’s Request
The application for discharge review, received 010430, 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 011127. 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 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues verbatim:

 1. During the time I served in the United States Navy I had always completed assigned task on time and with excellent results, I believe I was an exceptional leader and trained my division and shipmates well. I ashamed of the crime I committed and believe the punishment was just. The convening authority suspended my discharge, I have paid for my crime and strongly believe that to continue my civilian life with anything but an honorable discharge would force me to continue to pay for my crime. I have learned a valuable lesson and wish to put this behind me.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN               None
         Inactive: USNR (DEP)     960307 - 960903  COG

 Period of Service Under Review :
Date of Enlistment: 960904               Date of Discharge: 000914

 Length of Service (years, months, days):

         Active: 03 10 06
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 9                         AFQT: 54

 Highest Rate: MM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMA                  Behavior: NMA             OTA: NMA

Military Decorations: None

 Unit/Campaign/Service Awards: Rifle Marksman Ribbon, SSDR, NEM, AFEM, LOC, ESQ, MUC

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 1910-142 (formerly 3630605).

 Chronological Listing of Significant Service Events :

990512:  NJP for violation of UCMJ, Article 86: Unauthorized absence.
         Award: Extra duty for 14 days, reduction to E-3 (suspended for 6 months). No indication of appeal in the record.

000418:  Special Court Martial
         Charge I: violation of the UCMJ, Article 109: In November 1999, willfully and wrongfully damaged a motorbike graphics package by scraping it off the motorcycle, the amount of damage being in the sum of $142.00, the property of another sailor; Charge II: violation of the UCMJ, Article 121:In November 1999, steal a motorbike, a value of about $3,500.00, the property of another sailor; Charge III: violation of the UCMJ, Article 134: In January 2000, in a Honolulu Police Department Statement Form, wrongfully and unlawfully subscribe under lawful oath a false statement:
         Findings: to Charge I, and specification there under, guilty. To Charge II, and specification there under, guilty. To Charge III, and specification there under, guilty.
         Sentence: Confinement for 80 days, reduction to E-1, Bad Conduct discharge.
         CA 000612: Sentence approved and ordered executed, but the execution of that part of the sentence extending to a Bad Conduct Discharge is suspended for a period of 12 months from the date the sentence is adjudged, at which time unless the suspension is sooner vacated, the suspended part of the sentence will be remitted without further action.
000623:  Released from confinement.

 000725:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
000725:          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.
000822:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

000906:  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 000914 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).

 The applicant’s issue sates: “During the time I served in the united states navy I had always completed assigned task on time and with excellent results, I believe I was an exceptional leader and trained my division and shipmates well. I ashamed of the crime I committed and believe the punishment was just. The convening authority suspended my discharge, I have paid for my crime and strongly believe that to continue my civilian life with anything but an honorable discharge would force me to continue to pay for my crime. I have learned a valuable lesson and wish to put this behind me.” The Board found the Other Than Honorable discharge accurately characterizes the applicant’s service. The negative aspects of his service were significant and out weighed any positive contributions. The applicant states that he is remorseful of his misconduct and learned his lesson. The NDRB did not find this issue decisional or pertaining to the equity or propriety of the discharge. Relief is denied.

 The NDRB is authorized to consider post-service factors in the re characterization of a discharge. There is no law or regulation which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the service. Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, may be considered by the NDRB. The applicant failed to provide documentary evidence to demonstrate his positive community service, employment history, and clean police record. Relief is not warranted.

The applicant remains eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Representation at personal appearance hearing is recommended .




Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 30, dated 7 Nov 00, effective 30 Aug 00 until 24 Jan 01, Article 1910-142 [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B. 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.

C. 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.

D. 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 " afls10.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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