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NAVY | DRB | 2002_Navy | ND02-01165
Original file (ND02-01165.rtf) Auto-classification: Denied


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

ex-MSSN, USN
Docket No. ND02-01165

Applicant’s Request
The application for discharge review, received 020814, 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 030515. 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. Dear N_,

In the early 1990's my U.S. Navy enlisted career ended abruptly with an administrative discharge for disciplinary reasons. I was awarded an "other than honorable" discharge from a Captain's Mast proceeding for my part in the misappropriation of Navy food stores under my supervision.

Basically, I was convicted as a felon and my form DD-214 code for this discharge reflects that fact. A "less than honorable" discharge designation closes many doors and opportunities to a person and does so for the remainder of your life. I was justly awarded this punishment and my part in this affair was the result of extremely poor judgment and the devastating effects of alcohol abuse.

After my release from the Navy and return to home, my alcohol abuse continued to have a negative effect on my life and my relationships with others. However, I always held down a job, worked very hard and paid my rent. I finally hit rock bottom, realized alcohol was destroying my life and I joined Alcoholics Anonymous, walked away from drink, and have been "dry" for three years this summer. Alcoholics Anonymous has helped me change my life, my anger and frustration have given way to clear vision and hope for a better life.

I am deeply sorry for the hurt and damage I caused the U.S. Navy and many close friends and loved ones. Each day is a struggle, as it should be, but each day also brings me new hope.

I am eager to take advantage of greater challenges and better employment prospects. Many better job opportunities are closed to me because of my "less than honorable" Navy discharge. That characterization is holding me back. I have done what society would expect of me. I turned my life around and worked hard to become a better person.

If this stigma on my military record could be changed I would be deeply grateful. Your thoughtful consideration in this matter is appreciated.

Sincerely,




Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from Applicant, dated June 11, 2002, (2 pages)
Letter from United States Senate, dated August 2, 2002
Character reference from Rector, St. Peter's Cathedral, dated May 9, 2002
Character reference from Judge, Commonwealth of Pennsylvania, dated March 19, 2002
Character reference from Judge, United States District Court, Pennsylvania, dated April 4, 2002
Character reference from District Judge, Scranton, Pennsylvania, dated March 15, 2002
Applicant's DD Form 214
Character reference from Applicant’s step-brother (Ambassador of The United States of America, Buenos Aires), dated August 21, 2002

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     761202 - 770704  COG
         Active: USN                        770705 - 810325  HON
                  USN                       810326 - 870316  HON

 Period of Service Under Review :
Date of Enlistment: 870317               Date of Discharge: 910312

 Length of Service (years, months, days):

         Active: 03 11 26
         Inactive: None

 Age at Entry: 28                          Years Contracted: 6

 Education Level: 12                        AFQT: 55

 Highest Rate: MS1

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.60 (5)    Behavior: 3.44 (5)                OTA : 3.68

 Military Decorations: None

 Unit/Campaign/Service Awards: NEM, NDSM, SSDR (3), GCM (3)

 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 :

890817:  Retention Warning: Advised of deficiency (On 15 May 1989, while you were Barracks Petty Officer for Barracks 1015, a Navy Exchange candy vending machine was damaged, allowing merchandise within to be easily pilfered. Because you failed to properly secure the immediate area surrounding the machine, numerous pieces of candy were stolen from the machine.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
         
901203:  NJP for violation of UCMJ, Article 92: Fail to obey a lawful order by cohabitating with someone to whom he had a senior subordinate relationship between January 1990 and June 1990, violation of UCMJ, Article 121: Steal various items $100.00 value, between October 1988 to July 1990, violation of UCMJ, Article 134 (3 specs): (1) Attempt to influence testimony December 1990, (2) Attempt to influence testimony between 90102 and 901027, (3) Attempt to influence testimony between 901022 and 901027.
         Award: Forfeiture of $650 per month for 2 months, restriction and extra duty for 45 days, reduction to MS2. No indication of appeal in the record.
901206:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
901210:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
910111:  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 under other than honorable conditions, and recommended separation be suspended for a period of 12 months.

910125:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. Commanding Officer’s comments (verbatim): Petty Officer (Applicant) has demonstrated a lack of potential for future naval service. As a Mess Management First Class Petty Officer, Petty Officer (Applicant) was placed in a position of trust. He not only violated that trust, but when charges were brought against him, he attempted to influence the testimony of three junior sailors. Petty Officer (Applicant) does not deserve another chance to stay in the Navy. I disagree with the board's recommendation that Petty Officer (Applicant's) separation be suspended and I strongly recommend that he be separated from the naval service with an Other Than Honorable discharge at the earliest possible date.

910225:  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 910312 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 Board noted the Applicant’s believes his discharge reflects he was convicted as a felon and he also believes his Form DD-214 code for this discharge reflects that fact. This is not the case. The Applicant’s misconduct was not adjudged at either a Special or General Court-Martial, and he did not receive a punitive discharge. Therefore, he has no felony record from his naval service. The Applicant was administratively separated for his misconduct, the Separation Code, GKQ, indicates that he was discharged for Misconduct – Commission of a serious military or civilian offense. The offenses against the UCMJ described in the Applicant’s summary of service, individually and collectively, constitute serious offenses.

Regulations limit the Board’s review to a consideration of the propriety and equity of a discharge. T he NDRB has no authority to upgrade a discharge for the sole purpose of improving employment opportunities as requested by the Applicant. The Applicant’s discharge was proper and equitable and accurately reflects his service to his country. The Applicant’s summary of service clearly documents the reasons for the Applicant’s other than honorable characterization of service. A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a sailor. T he Applicant’s conduct, which forms the primary basis for determining the character of service, reflects his disobedience of the orders and directives that regulate good order and discipline in the naval service, and falls far short of that required for an honorable characterization of service. The record is devoid of evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. An upgrade to honorable would be inappropriate. Relief denied.
Issue 2: T here 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. Evidence 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. After a complete review of the record, including the evidence submitted by the Applicant, the Board determined that the Applicant’s discharge was proper and equitable and that his evidence of post service accomplishments was found not to mitigate the misconduct for which he was discharged. 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 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. Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Articles 92, 121, 134, if adjudged at a Special or General Court-Martial.
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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