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NAVY | DRB | 2004_Navy | ND04-00239
Original file (ND04-00239.rtf) Auto-classification: Denied


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

ex- AKAN, USN
Docket No. ND04-00239

Applicant’s Request
The application for discharge review was received on 20031120. 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.
In the acknowledgement letter the Applicant was informed that he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington, DC area. The Applicant did not respond.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20040728. 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 - convicted by a civil court for offense(s) occurring during current term of military service, authority: MILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

No issues were submitted by the Applicant.

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Copy of Summarized Record of Proceedings (5pages)
Letter from Applicant
Letter from Applicant dated February 5, 2004
National Bureau of Investigation Clearance
Philippine National Police Clearance
Barangay Clearance
Copy of Certificate of Completion (Air Cooled Diesel)
Copy of Certificate of Completion (Motorcycle)
Copy of Certificate of Completion (Transaxles)
Copy of Certificate of Completion (Air Cooled Engines)
DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     None
         Active: USN                        687075 - 720404  HON
 Active: USN                        720405 - 760929  HON
Active: USN                        760930 - 800819  HON


 Period of Service Under Review :
Date of Enlistment: 800820               Date of Discharge: 890630

 Length of Service (years, months, days):

         Active: 04 10 02
         Inactive: None

 Age at Entry: 40                          Years Contracted: 4

Education Level: 12                        AFQT: 44

 Highest Rate: AK1

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4.00 (4)    Behavior: 3.95 (4)                OTA: 3.96

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, NAVY”E”, NDSM, RVNMUV, MUC, GCA

Days of Unauthorized Absence: 1449

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct -convicted by a civil court for offense(s) occurring during term of military service, authority: MILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

800820:  Reenlisted at NASNI by PSBO for 4 years.

840819:  Extended for 18 months.

 861124:  Civil Conviction: [United States District Court for the Southern District of California] for violation of Article 18 U.S.C. 371 Conspiracy to defraud the United States; violation of Article 18 U.S.C. 2 and 18 U.S.C. 641 Aiding and abetting the theft of government property; violation of Article 18 U.S.C. 2 and 22 U.S.C. 2778 Aiding and abetting the exportation of defense Articles.
         Sentence: Count 1, 5 years imprisonment, Count 2, Six years imprisonment, Count 3, 2 years imprisonment. $50.00 penalty assessment on each count for a total assessment of $150.00. The following terms of imprisonment to run concurrently.

890302:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to civil conviction and misconduct due to commission of a serious civilian offense.

890302:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
890517:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to a civil conviction and misconduct due to commission of a serious civilian offense, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

890606:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to civil conviction and misconduct due to commission of serious civilian offense

890615:  CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to civil conviction.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged in absentia 19890630 under other than honorable conditions for misconduct due to civil conviction (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).

The Applicant introduced no decisional issues for consideration by the Board.

 A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a sailor. T he Applicant’s service was marred by a civil conviction, which included violations of the UCMJ that are considered serious offenses. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable or under honorable (general) characterization of service. Relief denied.

 The following is provided for the edification of the Applicant. The NDRB has no authority to provided additional review of this case since Applicant’s discharge occurred more than 15 years ago. The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

Pertinent Regulation/Law (at time of discharge)

 A. The Naval Military Personnel Manual, (NAVPERS 15560A, Change 7, effective
25 May 89 until 20 Aug 89), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT.

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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