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NAVY | DRB | 2002_Navy | ND02-00090
Original file (ND02-00090.rtf) Auto-classification: Denied


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

ex-SA, USN
Docket No. ND02-00090

Applicant’s Request
The application for discharge review, received 011015, 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 020619. 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. There was many people in the store that day a phone was drop and yes I picked it up, when asked how I got the phone I said I found it on the floor. I gave names of other shipmates that were in the store, but they were never questioned. I also had a witness "S___ B____" and they never questioned her either. I was not aware of what was happening until it was to late. I do not think I was given a fair trial. I was asked one question I understand that I have done something like that before, but this was not the case. I have too many brothers & sisters I have to take care of. They were my main reason for joining the Navy. I would not throw that away for a phone. I enjoy my job in the Navy, and learning new things. With this discharge there in nothing I can do for them or myself. I am useless. I've made mistake before stealing and almost kicked out. Believe me I would never make the same mistake twice, knowing that it could cost me everything I worked hard for. My family means the world to me, and I would do anything for them. My income from the Navy helped my family survive, but not I can't help them, and it really hurts. I was just at the wrong place at the wrong time. I hope that you can see that people learn from there mistakes because my mistake coast me my future.

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)     981230 - 990104  COG

 Period of Service Under Review :
Date of Enlistment: 990105               Date of Discharge: 010202

 Length of Service (years, months, days):

         Active: 02 00 28
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

Education Level: 12                        AFQT: 35

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (2)    Behavior: 2.00 (2)                OTA: 2 .66 (5.0 Evals)

 Military Decorations: None

 Unit/Campaign/Service Awards: BATTLE"E"(2), NUC, OSR, MUC, SSR

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 :

000725:  NJP for violation of UCMJ, Article 121: (5 Specifications), Larceny, Spec 1: Did on or about 000330, steal a Debit Check Card, of some value the property of Seaman Apprentice A____ E. B____; Spec 2: Did on or about 000330, steal a Debit Check Card, of some value the property of Seaman L____ C. R____; Spec 3: Did on or about 000331, obtain property by false pretenses, to wit: A JVC Camcorder 640, of a value of $299.00, the property of the Navy Exchange, by unlawfully using Seaman Apprentice B____'s Debit Check Card to purchase the JVC Camcorder 640; Spec 4: Did at or near Naval Support Activity, LaMaddalena, Italy, Building 205, on or about 000330, obtain currency from the Automatic Teller Machine by false pretenses, to wit: $400.00, the property of Seaman L____ C. R_____, by unlawfully using Seaman L____ C. R___'s Debit Check Card to withdraw $400.00; Spec 5: Did at the Navy Exchange, Naval Support Activity, LaMaddalena, Italy, on or about 000321, obtain unknown property, of a value of $25.64, by false pretenses from the Navy Exchange, by unlawfully using Seaman L____ C. R____ Debit Check Card to purchase the unknown property, of a value of $25.64. .
         Award: Forfeiture of $500.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.

001205:  Foreign Civil Conviction for violation of penal code article 624 (theft) and article 625 (aggravated) n.4 (fact has been committed by sleight of hand) in LaMaddalena, Italy on 001204.
 Sentence: 8 months in jail (suspended), L.400.000 (approx. $200.00) fine (suspended). SA S____ intends not to file an appeal for her conviction.
010105:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct, misconduct due to commission of a serious offense and misconduct due to a civil conviction.
010105:          Applicant advised of her 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.

010118:  Commander, Submarine Group 8 authorized the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
010123:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct as evidenced by NJP held on 000725 and a foreign civil conviction of 001205 during current enlistment, misconduct due to commission of a serious offense as evidenced by NJP held on 000725 for violation of the UCMJ, Article 121, larceny of two debit check cards and wrongfully obtaining property and currency by illegally using the stolen debit check cards, misconduct due to civil conviction as evidenced by a foreign civil conviction of 001205 for larceny of a cellular phone on 001204.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 010202 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. The Board’s charter limits its review to a determination on the propriety and equity of the discharge. In the applicant’s case the Board could discern no impropriety or inequity and therefore considered the applicant’s discharge was proper and equitable. The record is devoid of evidence that the applicant was not responsible for her conduct or that she should not be held accountable for her actions. Relief denied.

 Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the applicant’s enlistment. Additionally, 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 civilian life, subsequent to leaving the service. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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. Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge. Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of her not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct. The applicant did not provide sufficient documentation to warrant an upgrade to her discharge. She is reminded that she remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of her 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 31, dated 20 Feb 01, effective 25 Jan 01 until Present, 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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