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NAVY | DRB | 2002_Navy | ND02-00259
Original file (ND02-00259.rtf) Auto-classification: Denied


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

ex-DKSN, USN
Docket No. ND02-00259

Applicant’s Request
The application for discharge review, received 020114, 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 020815. 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 – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. My discharge was inequitable because it was based on one isolated incident in 9yrs 11mos and a number of days of active service with no other adverse action.

2. My reason for this request is to apply for the Memphis TN Community Police Dept, and to also show the review board that I am a caring person and I do try to make a good difference in society and in my community.

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter of Recommendation from Shift Coordinator S_ D_ , Slim Fast Foods Company
Reference Letter from Ms W_, Center Coordinator Northwest Tennessee Head Start Early Head Start/State Pre-School
Reference Letter from Assistant Principal C_ N_, Brighton High School
Reference Letter from Pastor D_ G. M_, St Luke Baptist Church
Letter from Applicant
Copies of DD Form 214 (2)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        810428 - 880221  HON
                  USN                       880222 - 910220  HON
         Inactive: USNR (DEP)     810425 - 810427  COG

 Period of Service Under Review :
Date of Enlistment: 910221               Date of Discharge: 910401

 Length of Service (years, months, days):

         Active: 0 01 10
         Inactive: None

 Age at Entry: 29                          Years Contracted: 4

Education Level: 12                        AFQT: 41

 Highest Rate: DK2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.00 (1)    Behavior: 2.00 (1)                OTA : 2.80

 Military Decorations: None

 Unit/Campaign/Service Awards: SSR(2), AFEM, GCA(2 ND ), MUC, HSM, CGSOR, NDSM

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.



 Chronological Listing of Significant Service Events :

910221:  Reenlisted onboard USS SEMMES (DDG-18) for 4 years.

 910315:  NJP for violation of UCMJ, Article 123: Forgery, violation of UCMJ Article 132: Fraud against the government, violation of UCMJ Article 134: Co-Habitation.
         Award: Forfeiture of $500.00 pay per month for 2 months (second month suspended for 6 months), restriction to TPU for 60 days, reduction to E-3, remove DK designation, and process for discharge. No indication of appeal in the record.

910315:  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 violation of UCMJ, Article 123, Forgery, violation of UCMJ Article 132, Fraud against the United States, and violation of UCMJ, Article 134, Co-habitation.
910315:  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.
910321:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by violation of UCM, Article 123, Forgery, violation of UCMJ Article 132, Fraud against the United States, and violation of UCMJ, Article 134, Cohabitation.

910328:  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 910401 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 contends his discharge was inequitable because it was based on one incident in 9 years, 11 months and a number of days of active duty service with no other adverse action. The Naval Discharge Review Board is only authorized to examine the enlistment during which the discharge was awarded. Prior honorable service is not a basis for relief.

The Board found the Applicant's contentions without merit. The term "serious offense" should not be confused with what is considered serious in the civilian world. The Uniform Code of Military Justice (UCMJ) categorizes a wide range of offenses: disrespectful language, failure to obey a lawful order or written regulation, drunken driving, forgery, fraud, missing ship's movement, unauthorized absence in excess of 30 days, making false official statements, and so forth, right up to the most "serious" crimes of spying, aiding the enemy in time of war, mutiny, rape and murder. Although all of these offenses come under the broad UCMJ category of "serious offense," some are clearly more heinous than others. A person in the military must abide by the standards set forth in the UCMJ, regardless of what guidelines his civilian counterparts might utilize. Forgery, and fraud against the government are "serious offenses" under the UCMJ. The commission of any single "serious offense" supports a discharge under other than honorable conditions. The Applicant's discharge was proper and equitable. Relief denied.

The following is provided for the benefit of the Applicant. 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.

E vidence of continuing educational pursuits, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should have been provided to receive consideration for clemency, based on post-service conduct. In addition, the Applicant should provide credible evidence of drug and alcohol free living. Although the Applicant did provide some evidence of post service conduct, the Board determined that the evidence provided was insufficient to warrant an upgrade.

The Applicant is reminded that the period of eligibility for a personal appearance hearing is 15 years from the date of discharge. The application package must be submitted to the NDRB prior to the expiration of the 15 year period. A personal appearance is recommended, but may not result in any change. The Applicant will have an opportunity to provide additional documentation to support any claims of post-service accomplishments at that time and present testimony. Representation at a personal appearance hearing is strongly recommended but not required.


Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560A), Change 8, effective
21 Aug 89 until 14 Aug 91, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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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