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NAVY | DRB | 2002_Navy | ND02-01048
Original file (ND02-01048.rtf) Auto-classification: Denied


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

ex-PRAN, USNR(TAR)
Docket No. ND02-01048

Applicant’s Request
The application for discharge review, received 020718, requested that the characterization of service on the discharge be changed to general/under honorable conditions and the reason for the discharge be changed to Administrative. The Applicant requested a personal appearance hearing before the board in the Washington National Capital Region. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter to the Applicant, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030414. 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, authority: NAVMILPERSMAN, Article 3630605.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. My discharge was inequitable because it was based on one isolated incident in 82 months of service with no other adverse action.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Professional achievement award in Wide Area Network Engineering, dated January 23, 1999
Professional achievement award in TCP/IP and Internetwork Engineering, dated December 7, 1998
Certificate of appreciation, dated May 13, 1998
Certificate of appreciation, dated October 22, 1997
Group achievement award, dated December 15, 1997
Job/character reference, dated February 8, 1999
Job/character reference, dated February 22, 1999
Job/character reference, undated
Job/character reference, dated March 28, 2002
Character reference, dated April 2, 2002
Applicant's DD Form 214
Thirteen pages from Applicant's service record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     890926 - 900211  COG
         Active: USNR              900212 - 930429  HON

 Period of Service Under Review :
Date of Enlistment: 930430               Date of Discharge: 970422

 Length of Service (years, months, days):

         Active: 03 11 23
         Inactive: None

 Age at Entry: 21                          Years Contracted: 5

 Education Level: 12                        AFQT: 42

 Highest Rate: PR2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.90 (4)    Behavior: 3.90 (4)                OTA: 3.90
 Performance: 3.00 (1)    Behavior: 3.00 (1)                OTA: 3.14

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, GCM, EAWS

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630605.

 Chronological Listing of Significant Service Events :

930430:  Applicant reenlisted for 5 years USNR (TAR).

 961202:  Special Court Martial [Extracted from Commanding Officer's message dated 970228.]
         Charge I: violation of the UCMJ, Article 107:
         Specification: False official statement, to wit: U.S. Navy leave and earnings statement VHA certification.
 Charge II: violation of the UCMJ, Article 121:
          Specification: Larceny valued at $1,594.00, the property of the U.S. Government:
         Charge III: violation of the UCMJ, Article 123:
         Specification: Forgery, to wit: make a signature to a joint petition for summary dissolution of marriage file in the Superior Court of California, County of Alameda.
         Findings: to Charge I, II and III and specifications thereunder, guilty.
         Sentence: Confinement for 60 days, forfeiture of $774 per month for 2 months, reduction to PRAN.
         CA 970124: Sentence approved and ordered executed.
970213:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
970213:  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.
970228:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

970324:  Chief of Naval Personnel forwarded discharge recommendation to Assistant Secretary of the Navy (Manpower & Reserve Affairs).

970331:  Assistant Secretary of the Navy (Manpower & Reserve Affairs) approved recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

970409:  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 970422 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).

Issue 1: The Applicant states his discharge was based on one isolated incident in “82 months of service with no other adverse action.” Even though the civilian world treats some offenses with leniency because they are a first time incident on an otherwise clear record, the military does not view such offenses as minor infractions to maintain proper order and discipline. The Applicant’s performance prior to the special court-martial does not mitigate the misconduct for which he was discharged. The Applicant’s convictions of false official statement, forgery, and larceny warranted processing for separation, normally under other than honorable conditions. The discharge was proper and equitable. Relief denied. However, the NDRB did note an administrative error on the original DD Form 214 and corrected it to reflect the Applicant’s previous three years of honorable service.

Regarding the Applicant’s request to change the Narrative Reason for Separation to “Administrative,” the NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, will change the reason for discharge if such a change is warranted. The summary of service clearly documents that misconduct was the reason the Applicant was discharged. The term “serious offense” should not be confused with what is considered serious in the civilian world. The UCMJ categorizes a wide range of offenses: disrespectful language, drunken driving, and so forth, right up to the most “serious” crimes of spying, 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 as set forth in the UCMJ, regardless of what guidelines his civilian counterparts might use. No other Narrative Reason for Separation could more clearly describes why he was discharged. To change the Narrative Reason for Separation would be inappropriate. Relief denied.

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 be provided to receive consideration for relief, based on post-service conduct. The Board was impressed with the Applicant’s employment record, but does not consider these accomplishments to be of sufficient nature to mitigate his misconduct while on active duty. Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of 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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