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NAVY | DRB | 2004_Navy | ND04-00387
Original file (ND04-00387.rtf) Auto-classification: Denied



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

ex-AZ3, USN
Docket No. ND04-00387

Applicant’s Request
The application for discharge review was received on 20040109. The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to “convenience of the Navy.” The Applicant requests a personal appearance discharge review before a traveling panel closest to Houston, TX. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area. Subsequent to the application, the Applicant obtained representation from the American Legion.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 20041104. 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 4 to 1 that the character shall not change and unanimous that the reason for discharge shall not change. The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/Misconduct - commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

 The NDRB did note administrative errors on the original DD Form 214.
Block 12a Date Entered AD This Period, should read: “84 09 21” vice “84 04 05”, Block 12c Net Active Service This Period, should read: “05 10 10” vice “06 03 26,” Block 12d Total Prior Active Service, should read: “03 06 15” vice “03 01 00,” and Block 24, Character of Service, should read: “GENERAL (UNDER HONORABLE CONDITIONS)" vice “GENERAL.” Also correct NAVPERS 1070/613 prepared on 850726 to reflect 840920 vice 840401. Commander, Naval Personnel Command, Millington, TN, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Issues submitted by the Applicant and representative (American Legion):

 1. “(Equity Issue) This former member opines that marital problems contributed to and sufficiently mitigated his misconduct of record to warrant the Board’s relief.”
2. “(Equity Issue) This former member further requests that the Board consider provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.”

3. “(Equity Issue) This former member finally requests an amendment of his reason for discharge to Secretarial Authority because his misconduct does not warrant the label -commission of a serious offense. ”
_______________________________________________________________________
In accordance with 32 C.F.R., section 724.166; SECNAVINST 5420.174C, enclosure (1), paragraph 1.16, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue in supplement to the Applicant’s petition.

The American Legion’s express purpose in providing this statement, and any other submittals or evidence filed, is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised. To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 U.S.C., section 1553 and set forth in 32 C.F.R., part 724 and SECNAVINST 5420.174C, enclosure (1).

This case is now respectfully submitted for deliberation and disposition.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Transcript, San Jacinto College (2 pages)
Letter regarding medical condition, dated 11 Aug 2004
Transcript, Westwood College of Aviation Technology
Certificate of Graduation, Westwood College of Aviation Technology, dated 05 Sep 2001
Certificate of Completion, Non-Destructive Testing, dated 05 Sep 2001
Character Reference Letter, dated 20 Oct 2004
Character Reference Letter, dated 03 Nov 2004
Character Reference Letter, undated
Character Reference Letter, dated 23 Sep 2004
Character Reference Letter, undated

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR            791115 - 800110  To Rep AcDu
         Active: USN                        800111 - 830210  HON
         Inactive: USNR            830211 - 830912  COG
         Inactive: USNR (DEP)     830913 - 840404  COG
         Active: USN                        840405 - 840920  HON

 Period of Service Under Review :
Date of Enlistment: 840921               Date of Discharge: 900730

 Length of Service (years, months, days):

         Active: 05 10 10
         Inactive: None

 Age at Entry: 23                          Years Contracted: 6

 Education Level: 12 1/2                    AFQT: 70

 Highest Rate: AZ2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.46 (9)    Behavior: 3.44 (9)                OTA : 3.49

 Military Decorations: None

 Unit/Campaign/Service Awards: Marksman .38 Cal, NER, SSDR, OSR w/ Bronze Star, CGSOR, GCA

 Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.



Chronological Listing of Significant Service Events :

891208:  NJP for violation of UCMJ, Article 86: Unauthorized Absence on 891128 at 1530-1630; violation of UCMJ Article 92 (2 Specs): Failure to obey a lawful order or regulations.
         Award: Oral reprimand. Reduction to E-4 (suspended 6 months).

900226:  NJP for violation of UCMJ, Article 80: Attempted larceny by Applicant to steal currency of a value of $49.04 on the property of the Nugget Casino on 900120, violation of UCMJ Article 121: Larceny. On or about 900120, a check (property of the U. S. Government) valued at $49.04 was stolen
         Award: Oral reprimand. Reduction to AZAN (suspended 6 months). No indication of appeal in the record.
900306:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by his punishment under Article 15 for Larceny and attempted Larceny.
900306:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27(b), elected to appear before an Administrative Discharge Board. [Extracted from enclosures of Commanding Officer’s letter dated 900703].
900510:  An Administrative Discharge Board, based upon a preponderance of the evidence and by a vote of 3 to 0 found that the Applicant had committed a serious offense, that the misconduct by commission of Larceny and attempted larceny based on the evidence presented at the hearing warranted separation (suspended), and by a unanimous vote recommended discharge to be characterized as general (under honorable conditions).

900703:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

900718:  CNMPC directed the Applicant's discharge with a general (under 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 19900730 with a general (under honorable conditions) for misconduct due to commission of a serious offense (A and B). The Board presumed regularity in the conduct of governmental affairs (C). 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 (D and E).

Issue 1: The Applicant contends his disciplinary problems were the result of stress caused by the deterioration of his marriage. The NDRB recognizes that serving in the U.S. Navy is challenging. Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country. It must be noted that most members of the Navy serve honorably and therefore earn their honorable discharges. In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. The NDRB found that the Applicant's service was equitably characterized. Relief denied.

Issue 2: Outstanding post-service conduct, 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, can be considered. In determining whether a case merits a change based on post-service conduct, the NDRB considers the length of time since discharge, the Applicant's record of community service, employment, conduct, educational achievements, and family relationships. In reviewing the Applicant’s post service, the Board was impressed with the efforts he has begun to make in attempting to recoup his reputation, which has been sullied by his misconduct in the Navy. However, the Applicant has provided insufficient evidence of post-service accomplishments to warrant an upgrade on this basis. Therefore, relief will not be granted at this time.

Issue 3: A "serious offense" is defined by the MILPERSMAN as an offense under the UCMJ for which the Manual for Court-martial authorizes a punitive discharge. A wide range of UCMJ offenses meet this criteria, including disrespectful language, failure to obey a lawful order or written regulation, such as not maintaining hair within standards, drunken driving, forgery, missing ship's movement, unauthorized absence for 30 days or more, making false official statements, and so forth, right up to the most "serious" crimes of spying, aiding the enemy in time of war, mutiny, rape and murder. Included in this list is a violation of UCMJ Article 121, Larceny. 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 the offense of Larceny was the reason the Applicant was discharged. No other Narrative Reason for Separation could more clearly describe why the applicant was discharged. To change the Narrative Reason for Separation would be inappropriate.

The following if provided for the edification of the Applicant. The NDRB has no authority to provided additional review of this case since Applicant has now received both a documentary review and a hearing review. 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. 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, Article 121, Larceny, 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 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

D. 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.

E. 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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