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NAVY | DRB | 2002_Navy | ND02-00868
Original file (ND02-00868.rtf) Auto-classification: Denied


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

ex-SR, USNR
Docket No. ND02-00868

Applicant’s Request
The application for discharge review, received 020608, 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 030319. 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 3630605.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. I feel that I served honorably other than one isolated incident in a 34 month period. I was meritoriously promoted out of boot camp and would have been promoted out of Airman school as well, but the CO could not promote the same person twice. I served honorably and loyally in the Presidential Honor Guard and made one mistake that I could not correct. Please review my records and consider upgrading me to an Honorable discharge.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Statement from Applicant dated March 17, 2002

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     920925 - 930528  ELS
                  USNR (DEP)      931222 - 940103  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 940104               Date of Discharge: 961114

 Length of Service (years, months, days):

         Active: 02 10 11
         Inactive: None

 Age at Entry: 18                          Years Contracted: 8

 Education Level: 12                        AFQT: 84

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.80 (1)    Behavior: 3.80 (1)                OTA: 3.80

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, Letter of Appreciation

 Days of Unauthorized Absence: (4)951019-951022

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630605.

 Chronological Listing of Significant Service Events :

951019:  Applicant in unauthorized absence status from 1330 on 951019 until 0730 on 951023 (4 days).

951023:  Statement from Applicant to Naval Criminal Investigative Service: Applicant used about $2,000.00 of funds collected for unit jackets to pay car repair bills, wrote a check with insufficient funds, and went UA in attempt to sell car to obtain funds.

951116:  NCIS Interim Report of Investigation, Larceny -- Personal, Case of [Applicant]: report of investigation initiated on 951020. Investigation was pending judicial action against [Applicant] and was conducted under suspected violation of UCMJ Article 121, Larceny/misappropriation.

951204:  NCIS follow-up Interim Report of Investigation, Larceny -- Personal, Case of [Applicant].

960213:  NCIS follow-up Interim Report of Investigation, Larceny -- Personal, Case of [Applicant].

961003:  Summary Court-Martial.
         Charge I: violation of the UCMJ Article 86: Specification: Unauthorized absence from 1330 on 951019 to 0730 on 951023 (4 days).
         Charge II: violation of the UCMJ Article 121: Specification: Wrongful appropriation of U.S. Currency of about $2000.00 - $2100.00 during the months of April 1995 to about September 1995.
         Finding: to Charge I and II and the specifications thereunder, guilty.
         Sentence: Confined for 21 days, reduction to SR.
         CA action 961006: Sentence approved and ordered executed.

961108:  Applicant notified of intended recommendation for discharge with a characterization of general (under honorable conditions) by reason of misconduct due to the commission of a serious offense. Applicant acknowledges that the least favorable characterization of service he may receive is general.
961108:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27(b), elected to waive all rights.
970103:  Commanding Officer, Naval Station Washington directed discharge with a characterization of general (under honorable conditions) by reason of misconduct due to the commission of a serious offense. Commanding Officer comments: "As evidenced by his recent Summary Court-Martial, [Applicant] was demonstrated a total disregard for the rules and regulations of the military. He has become a detriment to good order and discipline, is a liability to this command, and has demonstrated absolutely no potential for continued Naval service."

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 961114 with a characterization of 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 contends that he served honorably during his time in the Navy and that his discharge was based on one isolated mistake in a 34-month period of service. The Applicant’s conduct, and not his time served, forms the primary basis in determining his characterization of service. A characterization of service of general (under honorable conditions) is warranted when the service member’s conduct constitutes a departure from that expected of a Sailor. The records the Board reviewed showed there to be credible evidence that the Applicant committed a serious offense. The Applicant’s service is equitably characterized as being performed under general conditions due to this misconduct. Relief on this basis is denied.
The Applicant further contends that his service record is devoid of any other misconduct and contains commendatory material that warrants an honorable characterization of service. Administrative separation for the commission of a serious offense is based on a single incident. The Applicant’s performance and behavior marks, meritorious promotion out of boot camp, and service in the Presidential Honor Guard do not mitigate his violation of the UCMJ. The Applicant's misconduct, as established at his summary court-martial, warranted processing for administrative separation normally under other than honorable conditions. In the Applicant's case, he received a characterization of general (under honorable conditions). Relief on this basis is denied.

The following is provided for the edification of the Applicant. There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service. The NDRB is authorized, however, 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 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, an employment record, documentation of community service, and certification of non-involvement with civil authorities are examples of verifiable documents that may be provided to receive consideration for relief based on post-service conduct. At this time, the Applicant has not provided such documentation for the Board to consider.

The Applicant 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. 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 14, effective
03 Oct 96 until 971212, Article 3630605, 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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