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NAVY | DRB | 2001_Navy | ND01-00828
Original file (ND01-00828.rtf) Auto-classification: Denied


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


ex-DCFR, USN
Docket No. ND01-00828

Applicant’s Request
The application for discharge review, received 010605, 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 011214. 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

 1. The discharge I received was an other than honorable discharge, I feel my discharge should be changed to an honorable. I was charged as an accomplice in the theft of a computer printer. I was awarded reduction in rate from E-3 to E-1, and 60 days in the Jacksonville navy brig, after being released I was awaiting an administrative board to determine whether or not I was to receive a discharge, and what type. I was told by legal personnel that it would be 6 months to a year, and that I had the option to waive the board. I elected to waive the administrative board, and receive the other than honorable discharge. I had no prior history of trouble, military or civilian, and this is why I am requesting to have my discharge changed to honorable. Thank you for your time.

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)     940708 - 950116  COG
Period of Service Under Review :
Date of Enlistment: 950117               Date of Discharge: 980129
Length of Service (years, months, days):

          Active: 02 11 00
          Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 48
Highest Rate: DCFA

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: NMA                  Behavior: NMA             OTA: NMA

Military Decorations: None
Unit/Campaign/Service Awards: NDSM

Days of Unauthorized Absence: 44

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 :

970905:  Special Court Martial
          Charge I: violation of the UCMJ, Article 78: Knowing that on board Naval Station, Mayport, Florida, on or about 970524, MM3 E___ W. G_____, USN, had committed an offense punishable by the UCMJ, to wit: larceny of a Hewlett Packard Deskjet Printer, military property, from NAVSTA Mayport Auto Hobby Shop, did, at Mayport, Florida, on or about 970524, in order to prevent the apprehension of MM3 E__ W. G____, USN, assist him by driving him and the stolen property from Naval Station, Mayport, Florida, to his off-base residence. Charge II: violation of the UCMJ, Article 86: On or about 0917, 951211, without authority, absent himself from his organization, to wit: Naval Hospital, Jacksonville, Florida, and did remain so absent until on or about 1633, 960124 (44days/S). Charge III: violation of the UCMJ, Article 92: On or about 970524, fail to obey a lawful general regulation, to wit: Article 1137, U.S. Navy Regulations, by wrongfully failing to report to superior authorities an offense under the UCMJ, to wit: Larceny. Charge IV: violation of the UCMJ, Article 107: Did, on board Naval Station, Mayport, Florida, on or about 970525, with intent to deceive, make to MA2 D___ D. M___, USN, Naval Station Mayport Base Police Officer, an official statement, to wit: "It is my printer but I do not have a receipts or remember when I bought it, " or words to that effect, which statement was totally false and was then known by DCFN J____ B. C____ to be false. Charge V: violation of the UCMJ, Article 121: Did, on board Naval Station, Mayport, Florida, on or about 970524, steal a Hewlett Packard Deskjet Printer Model 693c, military property, of a value of about $299.00, property of the U.S.Government. Charge VI: violation of the UCMJ, Article 134: Did, on or about 970524, wrongfully receive a Hewlett Packard Deskjet Printer Model 693c, military property of a value of $299.00, the property of the U.S. Government, which property DCFN J____ B. C____ then knew had been stolen.
         Findings: to Charge I and specification thereunder, guilty. To Charge II and specification thereunder, guilty. To Charge III and specification thereunder, withdrawn. To Charge IV and specification thereunder, withdrawn. To Charge V and specification thereunder, withdrawn. To Charge VI and specification thereunder, guilty.
         Sentence: Confinement for 85 days, to pay fine of $750.00, reduction to E-1.
         CA 971215: Sentence approved and will be executed but the execution of that part of the sentence extending to confinement in excess of sixty (60) days is suspended for a period of six (06) months, at which time, unless suspension is sooner vacated, the suspended part of the sentence will be remitted without further action. The sentence is approved and partially suspended in accordance with the provision of the pretrial agreement.
971203:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by Special Court Martial on 5 September 1997 as documented in your service record.
971203:          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.
971209:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by Special Court Martial on 5 September 1997.

980129:  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 980129 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).
Issue 1. With respect to a discharge adjudged by a court-martial case, the action of the NDRB is restricted to upgrades based on clemency (C, Part IV). The applicant’s case was considered under the pertinent standards of equity to determine if any factors in this particular case merited clemency. The NDRB found the applicant’s service record devoid of any mitigating or extenuating factors sufficient to offset the seriousness of the offenses for which the discharge was awarded. Relief denied.
He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge. The applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Legal representation at a personal appearance hearing is highly recommended but not required. Relief denied.


Pertinent Regulation/Law (at time of discharge)
A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective
12 Dec 97 until 29 March 2000, 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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