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NAVY | DRB | 2003_Navy | ND03-00351
Original file (ND03-00351.rtf) Auto-classification: Denied


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

ex-CR, USNR
Docket No. ND03-00351

Applicant’s Request
The application for discharge review was received on 20021231. The Applicant requests the characterization of service received at the time of discharge be changed to honorable or 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 20031205. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety but did discern an inequity in the characterization of the Applicant’s service. The Board’s vote was three to two that the character of the discharge shall change. The discharge shall change to:
GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

1. “I believe my discharge should be upgraded. My reasons are thus: When I was in the Navy I was very young and immature. All I could think of was getting out, looking back on everything, I realize that if I could do it over again I would. I would do it all differently. I realize that I made a few large mistakes, and I apologized for them. I don’t think that punishment through an “OTH” discharge is fair any longer. I believe I have paid my debt, and I think my discharge should be upgraded. I am a family man now, I have 2 beautiful children and a wonderful wife. I attend and am very involved in our church. I have definitely changed my life around for the better. I sincerely hope you will upgrade my discharge. ”
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):
         Inactive: None
         Active: None

 Period of Service Under Review :
Date of Enlistment: 930817               Date of Discharge: 940307

 Length of Service (years, months, days):

         Active: 00 06 21
         Inactive: None

 Age at Entry: 18                          Years Contracted: 8

 Education Level: 12                        AFQT: 69

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.00 (1)    Behavior: 2.00 (1)                OTA: 2.00

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 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 3630600.

 Chronological Listing of Significant Service Events :

931207:  Report of Offense Investigation results.

931217:  NJP for violation of UCMJ, Article 121 (2 specs): (1) Larceny, to wit: steal one bottle of Drakkar Noir aftershave, one Pentel mechanical lead pencil and one package of Pentel replacement leads, a value of $22.59, the property of the Navy Exchange on 931109, (2) Steal one cassette tape entitled “Kenny Roger’s Greatest Hits”, a value of $8.00 property of M_ M_ on 931111.
         Award: Forfeiture of $400 per month for 2 months, restriction and extra duty for 45 days, reduction to CR. No indication of appeal in the record.
931223:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
931223:  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.
940107:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

940202:  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 19940307 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 but not equitable (C and D).

 Issue 1: After a review of the Applicant’s service record, in conjunction with consideration of the factors listed in paragraph 9.3 (D), it was determined that relief is warranted under equitable grounds. The Applicant’s service record is marred by award of non judicial punishment (NJP) for theft of property valued at approximately $30.59. The Board voted three to two that the offense was not serious enough to warrant the characterization of service the Applicant received. The discharge shall change to: GENERAL (UNDER HONORABLE CONDITIONS)/Misconduct.

Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 5, effective
05 Mar 93 until 21 Jul 94, 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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