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NAVY | DRB | 2002_Navy | ND02-00278
Original file (ND02-00278.rtf) Auto-classification: Denied


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

ex-SN, USNR
Docket No. ND02-00278

Applicant’s Request
The application for discharge review, received 020122, requested that the characterization of service on the discharge be changed to honorable. The Applicant requested a documentary record discharge review. The Applicant listed the Veterans of Foreign Wars as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 021121. 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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. All debts to the Navy were repaid prior to any punishment

2. This was my first offense

3. I had an excellent service record prior to this event

4. Never received any type of verbal or written counseling in this matter

5. Applicant indicated above requested that Veterans of Foreign Wars act as counsel concerning her application. Her records were reviewed on 11/12/02 and the following comments are hereby submitted.

We could not find in the available records for review that the Applicant was counsel regarding her performance or the intention to discharge her, we consider this to be an issue of impropriety. We further believe there is an issue of inequity. The penalty paid was high for the offense that was committed.

We refer this case to the Board for careful and compassionate consideration and request the Applicant's discharge be reviewed for upgrade to Honorable.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant's DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: None
         Active: None

 Period of Service Under Review :
Date of Enlistment: 941108               Date of Discharge: 990404

 Length of Service (years, months, days):

         Active: 04 04 27
         Inactive: None

 Age at Entry: 18                          Years Contracted: 8

 Education Level: 12                        AFQT: 68

 Highest Rate: MA3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.33 (3)    Behavior: 3.50 (4)                OTA: 3 .32

 Military Decorations: None

 Unit/Campaign/Service Awards: OSR (2), NDSM, Letter of Commendation (2), GCM, NUC

 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 :

981014:  NJP for violation of UCMJ, Article 92: Disobeying a lawful order, violation of the UCMJ, Article 107: False official statement, and violation of UCMJ, Article 123a: Make, draw/utter checks without sufficient funds.
         Award: Restriction for 30 days, reduction to SN. No indication of appeal in the record.
Unknown:         An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed a serious offense, that the misconduct warranted separation, and recommended discharge with a characterization of service as General (under honorable conditions). [Extracted from CO's letter dated 990420.]

990420:  Commanding Officer recommended discharge as General (under honorable conditions) by reason of misconduct due to the commission of a serious offense. Commanding Officer’s comments (verbatim): SN (Applicant) was a rated master-at-arms who lied to NCIS and implicated her fellow security personnel in the theft of her checkbook. Her position as a law enforcement officer only reinforces the seriousness of her misconduct and renders her unfit for continued naval service. I concurred with the Administrative Discharge Board's recommendation and separated SN (Applicant) with a General (Under Honorable Conditions) discharge.

Only partial discharge package available.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 990404 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).

The NDRB found the Applicant committed a serious offense that warranted processing for separation. The term "serious offense" should not be confused with what is considered serious in the civilian sector. The Uniform Code of Military Justice (UCMJ) categorizes a wide range of offenses: disrespectful language, uttering bad checks, 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. Writing bad checks and false official statements are "serious offenses" under the UCMJ. The commission of any single "serious offense" supports a discharge under other than honorable conditions. The Applicant was fortunate to receive a discharge with a General (under honorable conditions) characterization of service. Her discharge was proper and equitable. Relief denied.

The Applicant states her discharge was based on one incident and she was not given any warning or counseling. The Applicant was a rated master-at-arms. She provided a false statement to the Naval Criminal Investigative Service and implicated her fellow security personnel in the theft of her checkbook. The seriousness of her offenses coupled with her abuse of her position of trust warranted processing for separation. The Applicant was processed according to the rules and regulations existing at the time of her discharge. The discharge was proper and equitable. Relief is denied.

The Applicant asserts that her overall service was excellent prior to the offenses and warrants an upgrade to her discharge. When the service of a member of U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. A discharge with a characterization of service as General (under honorable conditions) 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 her misconduct. The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her willful failure to meet the requirements of her contract with the U.S. Navy and falls short of that required for an upgrade of her characterization of service. Relief is not warranted.
The following is provided for the benefit of the Applicant. Normally, to permit relief, the discharge or characterization of the Applicant's service had to be improper or inequitable. 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. Relief denied.

 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. The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Representation at a personal appearance hearing is recommended but not required.



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 " afls14.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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