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NAVY | DRB | 2002_Navy | ND02-00132

Original file (ND02-00132.rtf) Auto-classification: Denied

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

ex-RM2, USN
Docket No. ND02-00132

Applicant’s Request

The application for discharge review, received 011022, requested that the characterization of service on the discharge be changed to entry level separation or uncharacterized. The applicant requested a documentary record discharge review. The applicant listed the Disabled American Veteran as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020701. 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 and narrative reason of the discharge shall not change. The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. I want to say, I really thank you, for looking at my records. Some of the statements or correct some or incorrect. The Board stated "(applicant) were convicted by civil authorities of writing a worthless check. That statement is true! However I want to say, I made a big mistake! However I did not write 5 checks. In July 98, I wrote 3 checks. I was directed by my commanding officer I have 2 days to pay off, my worthless checks. Duval (Jacksonville) court order me to pay the checks off in 15 days. I was directed by my commanding officer in 2 days. No excuse or I would be going to C.O. mast for a NJP. I paid off my checks and closed the account in satisfactory! Here is a statement from Navy Federal Credit Union!
If I was confine for 2 days. If that statement was to be true on my DD214 form where it stated "Time Lost or U/A it will not of read I will not read "None", where it states U/A read "None". The board stated "I elected to waive the rights to present my case to an Admin Board. "I waive that right, because my Command Legal Officer stated "If you go to an Admin Board and lose your case you will get an Bad Conduct Discharge. As per YNCS (SW) H_.I did not want a B.C.D. Discharge. I wanted to keep my G.I. Bill, V.A. Loan etc. With a B.C.D. Discharge, I was told those privilages, will be provoke!I am sorry I wrote those bad checks! I really missed the military. I made a huge mistake! It hurts me to see service member, in uniform in which I use to serve. Beside writing bad checks I never been in trouble. Please re-consider, to change my RE-4 to RE-3. I loved the military. I took being in the Armed Service for granted. Please give me a second chance. I will serve my country for free! Just for me to be back in uniform. Please give me a second chance! The military has been great to my family! I have had 3 kids to be born, in a naval hospital, the military has took good care of my handicapp daughter! Sometimes I seen my old shipmates in the area! Where I live Jacksonville FL. They are now 1 ^st class Petty Officer & some are now Chiefs Petty Officer! Sir or Maam, it hurts me because that could of been me. Please allow me a RE-3 Code so I can re-enter the Army or Florida Army National Guard. Again please allow me a 2 ^nd chance. Thank you and may God bless you and may God Bless your co-workers & military family of the Pentagon Tragedy! Sincerly Yours.

2. Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, we continue to note the request of the FSM of a change of the narrative reason for separation of MISCONDUCT.

The record reflects the FSM served on active duty from April 24, 1990 to April 12, 1999 at which time he received the current General, Under Honorable Conditions discharge, with a narrative reason of misconduct.

As noted on the application the FSM contends the current narrative reason for seperation is inequitable. Further it is requested the reason for separation be changed to; for the convenience of the government. With consideration of his good prior service and review of the circumstances involved. On his personal statement the FSM notes restitution was made on the "bad check" as directed by his C.O. That he was never confined as has been noted and that the only reason he took the Administrative Board is due to the legal advice of the Command Legal Officer who told him he would receive a Bad Conduct discharge if he lost his case at the Court Martial hearing.

It is the stipulation of this service that for one-time offense such as this, the punishment is much to harsh. Restitution was made by the FSM in a very timely fashion, his service prior to the incident in question was good honorable service, and equitable relief in this case is an order. We therefore request the applicant's request for a change of the narrative reason be changed to reflect for convenience of the government.

We ask for the Boards' careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the applicant.

Documentation

In addition to the service record, the following additional documentation, submitted by the applicant, was considered:

Copy of DD Form 214
Copy of statement of account from Navy Federal Credit Union dated August 20, 1998 through September 19, 1998
Copies of three checks all dated July 15, 1998
Form from Duval County Public Schools dated April 11, 2000 (2 pages)
Copy of Social Security Administration, Supplemental Security Income letter dated May 28, 2001

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

         Active: ARNGUS            880331 - 900423 HON
                  USN                       900424 - 940216 HON
                  USN                       940217 - 971228 HON
         Inactive: None

Period of Service Under Review :

Date of Enlistment: 971229               Date of Discharge: 990412

Length of Service (years, months, days):

         Active: 01 03 14
         Inactive: None

Age at Entry: 29                          Years Contracted: 3

Education Level: 12                        AFQT: 27

Highest Rate: RM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance: 3.50 (2)    Behavior: 2.50 (2)                OTA: 3.18

Military Decorations: None

Unit/Campaign/Service Awards: ASR, GCM (2), KLM (K), AFSM, SSDR, SASM, NDSM

Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events :

980407: Applicant wrote two worthless checks to the Navy Exchange ($48.25 total).

980715: Applicant wrote 3 worthless checks to a local check cashing service ($373.00 total).

990128: Applicant arrested by Jacksonville Sheriff's office for writing worthless check on 2 May 98 and spent the night and the next day in jail.

990129: Civil conviction for charge of writing a worthless check on 2 May 98.
Plea: No contest. (Date estimated)
         Sentence: Granted time served and ordered to pay restitution and court costs.

990312: Commanding Officer directed discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.

Partial discharge package, documents missing.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 990412 general (under 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 applicant’s discharge characterization accurately reflects his service to his country. Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice is evident during the applicant’s enlistment. Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces. Relief denied.

Issue 2. A characterization of service of under honorable conditions (general) is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. T he applicant’s service was marred by the commission of a serious offense. No other narrative reason other than misconduct more clearly describes the circumstances surrounding the applicant’s processing for administrative separation. The applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service. An upgrade to honorable would be inappropriate. Relief denied.

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 his 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 his discharge. 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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NAVY | DRB | 2002_Navy | ND02-00132

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