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NAVY | DRB | 2002_Navy | ND02-00449
Original file (ND02-00449.rtf) Auto-classification: Denied


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

ex-MSSR, USN
Docket No. ND02-00449

Applicant’s Request
The application for discharge review, received 020226, 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 021104. 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. I was told in court that after two years my discharge could be upgraded. I am now a business owner with three children I would like to have the upgrade in order to take college courses to further advance my education. Thank you for taking the time to consider my request.

 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)     881230 - 890123  COG

 Period of Service Under Review :
Date of Enlistment: 890124               Date of Discharge: 920205

 Length of Service (years, months, days):

         Active: 02 10 00
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

Education Level: 12                        AFQT: 54

 Highest Rate: MS3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.33 (3)    Behavior: 3.33 (3)                OTA : 3.26

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR, ESQ, SSBN Deterrent Patrol Pin(2 nd ), LOC

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 :

910808:  Special Court Martial
         Charge I: violation of the UCMJ, Article 81: Conspire to steal during divers times from September through October 1990, personal property of unknown individuals of a value of in excess of $200.00. Charge II: violation of the UCMJ, Article 121: (2 Specifications), Spec 1: Steal during divers times from September through October 1990, various electronics equipment of a value in excess of $3,800; Spec 2: Steal during divers times from September through January 1991, various stereo equipment worth over $100.00. Charge III: violation of the UCMJ, Article 134: (2 Specifications), Spec 1: Received $3,800.00 worth of stolen property during diverse times from September through October 1990.
         Findings: to Charge I and specifications thereunder, not guilty. To charge II and specification 1 and 2 thereunder, guilty. To charge III and specification 1 thereunder, guilty, specification 2 thereunder, not guilty.
         Sentence: Confinement for 100 days, forfeiture of $300.00 pay per month for 4 months, reduction to E-1, Bad Conduct discharge.
         CA 911008: Sentence approved as adjudged; confinement in excess of 3 months and the bad conduct discharge are suspended; and, the sentence, except for that portion extending to a bad conduct discharge, is ordered executed.
        
911002:  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 having been found guilty at a special court-martial for violation of the UCMJ, Article 121, Larceny, and Article 134, knowingly receiving stolen property, all of which a punitive discharge is authorized.
911004:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
911010:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

920204:  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 920205 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 following is provided as a response to the Applicant’s issues. The NDRB does not grant automatic upgrades. Nor does the NDRB grant upgrades so that former members can attend college. The Applicant should be aware that 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 the civilian life subsequent to leaving the service. Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. Outstanding post-service conduct, 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, may be considered by the NDRB. The Applicant did not provide any post-service documentation. Relief denied.

The Applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Representation at personal appearance hearing is recommended.


Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until
04 Mar 93, 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 " 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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