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NAVY | DRB | 2003_Navy | ND03-00358
Original file (ND03-00358.rtf) Auto-classification: Denied


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

ex-PCSN, USN
Docket No. ND03-00358

Applicant’s Request

 The application for discharge review was received on 20021223. The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions. The Applicant requests 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 20031215. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. 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 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“1. My Other than Honorable discharge was inequitable because it was based on one isolated incident in sixty nine months of service with no other adverse action.

2. I have had four years of previous Honorable service with no misconduct.

3. My Employment record since my discharge shows no misconduct.

4. I have committed no serious offenses since my discharge.”
Documentation
Only the service and medical records were reviewed, as the Applicant did not provide additional documentation for the Board to consider.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     870403 - 870802  COG
         Active: USN                        870803 - 910620  HON

 Period of Service Under Review :
Date of Enlistment: 910621               Date of Discharge: 930723

 Length of Service (years, months, days):

         Active: 02 01 03
         Inactive: None

 Age at Entry: 34                          Years Contracted: 2 (11 months extension)

 Education Level: 16                        AFQT: 85

 Highest Rate: PC2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.45 (4)    Behavior: 3.50 (4)                OTA: 3.40

 Military Decorations: None

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

 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 :

930114:  Special Court Martial:
         Charge I: violation of the UCMJ, Article 121, (2 specs):
         Specification 1: Steal U.S. currency of a value of $200.00 the property of Central Fidelity Bank on 920616.
         Specification 2: Steal U.S. currency of a value of $125.00 the property of Dominion Bank on 920617.
         Charge II: violation of the UCMJ, Article 134 (2 specs):
         Specification 1: Wrongfully take certain mail matter that belonged to another in June 1992.
         Specification 2: Wrongfully take certain mail matter that belonged to another in June 1992.
         Charge II: violation of the UCMJ, Article 123 (2 specs):
         Specification 1: Utter a certain check in the amount of $125.00 on 920703.
         Specification 2: Utter a certain check in the amount of $140.00 on 920703.
         Findings: to Charge I, II, and III specifications thereunder, guilty.
         Sentence: CHL for 90 days, forfeiture of $200 per month for 3 months, reduction to PCSN.
         CA 930427: Sentence approved and ordered executed, except for bad conduct discharge.

930114:  Applicant to confinement.

930329:  Applicant release from confinement and returned to full duty.

930331:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
930406:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
930506:  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.

930603:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

930628:  Chief of Naval Personnel recommended to Assistant Secretary of the Navy (Manpower and Reserve Affairs), Applicant’s discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
930628:  Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
930702:  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 19930723 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 “69 months.” The civilian authorities treat some offenses with leniency because they are a first time incident on an otherwise clear record, however, to maintain proper order and discipline, the military does not view such offenses as minor infractions. The Applicant’s service record is marred by award of a Special Court-Martial , thus substantiating the misconduct for which he was separated. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered his discharge proper and equitable. Relief denied.

Issue 2. When the service of a member of U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. An Under Other Than Honorable Conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

The NDRB noted an administrative error on the original DD Form 214. Block 18 did not reflect the Applicant’s previous four years of honorable service. The Board notified Commander, Naval Personnel Command, Millington, TN and recommended the DD Form 214 be corrected or reissued.
Issues 3 and 4. 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. After a complete review of the entire record, the board determined that the Applicant’s discharge was appropriate and that the Applicant’s statement of post-service conduct was found not to mitigate the conduct for which he was discharged. Relief denied.

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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