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NAVY | DRB | 2005_Navy | ND0500631
Original file (ND0500631.rtf) Auto-classification: Denied


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

ex-PNSR, USN
Docket No. ND05-00631

Applicant’s Request
The application for discharge review was received on 20050223. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. 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 20050620. 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 discharge was inequitable because it was based on one isolated incident in 3 years 9 months of service with no other adverse action. I think my discharge should be changed because I was innocent of the charges. I admit that I was wrong for not exposing my co-worker when I found out that he was selling I.D. cards. However, I was not involved with any sell or illegal activity. All I ever did was talk to my friend and he took my idea and ran with it on his own. I’ve wished I would have never even talked about how to sell I.D. cards with him, since all it was for me was talk. I never intended to take any action, but my friend did and he implicated me when he got caught."
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Character Reference Letter from J_ S_, Registrar, Westwood College of Aviation
Technology dated February 7, 2005
Transcript from Westwood College of Aviation dated February 7, 2005 (3 pages)
(2 copies)
Character Reference Letter from C_ R. W_ dated April 4, 2005
Reference Letter from J_ B_, Westwood College of Aviation Technology dated
April 2, 2005
Character Reference Letter from B_ J. T_
Character Reference Letter from D_ H_, Owner Lighthouse Printing dated April 4, 2005
Certificate of Appreciation from Honeywell for the period from October 6, 1997 to
March 8, 2002
Certificate of Appreciation from L3 Communications dated January 30, 1999
Certificate of Recognition (5 years dedicated service) from L3 Communications dated
October 1997
Certificate of Achievement (Perfect Attendance, Block GEN1D) from Westwood
College of Aviation dated February 26, 2004
Certificate of Achievement (Perfect Attendance, Block AF1D) from Westwood
College of Aviation dated April 1, 2004
Certificate of Achievement (Perfect Attendance, Block PP1D) from Westwood
College of Aviation dated August 26, 2004
Certificate of Achievement (Perfect Attendance, Block AF4D) from Westwood
College of Aviation dated October 1, 2004


Certificate of Achievement (Perfect Attendance, Block AF3D) from Westwood
College of Aviation dated November 4, 2004
Certificate of Achievement (Perfect Attendance, Block AF5D) from Westwood
College of Aviation dated December 10, 2004
Certificate of Achievement (Perfect Attendance, Block PP2D) from Westwood
College of Aviation dated January 28, 2005

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     911211 - 920728  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 920729               Date of Discharge: 960515

 Length of Service (years, months, days):

         Active: 03 09 15
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 41

 Highest Rate: PN3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.93 (3)             Behavior: 4.00 (3)                OTA: 4.00

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR

 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 :

951114:  Special Court Martial
         Charge I: violation of the UCMJ Article 80 (2 Specifications):
 Specification 1: Attempt to offer, manufacture, and sell a DD Form 2N Active Duty Naval Military Identification Card on or about January to September 1995.
Specification 2: Attempt to offer and manufacture a DD Form 1172 Application for Uniformed Services Identifiaction Card on or about July 1995.
Charge II: violation of the UCMJ Article 81:
Specification: Conspiracy to offer, manufacture, and sell active duty military identification cards on or about January to September 1995.
Charge III: violation of the UCMJ Article 134:
Specification: Wrongfully solicit another to purchase active duty Naval military identification cards on or about January to September 1995.
Findings: to Charge I and specification 1 thereunder, not guilty; to Charge I and specification 2 thereunder, guilty; to Charge II and specification thereunder, guilty; to Charge III and specification thereunder, not guilty.
          Sentence: Confinement for 90 days, reduction to E-1.
         CA 951228: Approved findings and sentence.
960209:  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 service record entries.
960209:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
960304:  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.

960313:  Commanding Officer, USS SAIPAN (LHA 2) recommended to the Chief of Naval Personnel discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by service record entries. Commanding Officer's comments (verbatim): Misconduct of the nature committed by the respondent is incompatible with the maintenance of high standards of performance, military discipline, and readiness, and is destructive of SAIPAN's effort to instill pride and promote professionalism.

960416:  Chief of Naval Personnel recommends to the Assistant Secretary of the Navy for Manpower and Reserve Affairs (ASN (M&RA)) that the Applicant be separated from the Naval service under other than honorable conditions on the basis of misconduct due to the commission of a serious offense.

960423:  ASN (M&RA) approved applicant’s discharge as recommended by the Chief of Naval Personnel.

960425:  BUPERS WASHINGTON DC 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 19960515 under other than 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 that his discharge was inequitable as it was based upon one isolated incident in three years and nine months of service. The NDRB advises the Applicant that, despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Marine Corps in order to maintain proper order and discipline. The Applicant's misconduct is documented in his service record, which is marred by a conviction at a special court-martial for violations of the following articles of the UCMJ: 80 Attempt to offer and manufacture a DD Form 1172 Application for Uniformed Services Identification Card; and 81 Conspiracy to offer, manufacture, and sell active duty military identification cards. This misconduct substantiates the reason for his separation as well as his characterization of service under other than honorable conditions. No other narrative reason for separation or characterization could more clearly describe why the Applicant was discharged. Relief on this basis is denied.

The Applicant further contends that he was innocent of the charges for which he was tried at a special court-martial. The record shows that the Applicant was found not guilty of one specification of violating UCMJ Article 80 and one specification of violating UCMJ Article 134. However, he was found guilty of a second specification of violating UCMJ Article 80 and two specifications of violating UCMJ Article 81, for which he was sentenced to 90 days confinement and reduction to pay grade E-1. The special court-martial convening authority subsequently reviewed and approved these findings as well as the sentence that was adjudged. This clearly establishes the culpability of the Applicant and the basis for his separation. Relief on this basis is denied.

 The Board advises the Applicant that 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. 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 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, employment records, documentation of community service, and certification of non-involvement with civil authorities are examples of verifiable documentation that should be provided to receive consideration for relief based on post-service conduct. The Board acknowledges the Applicant's continuing educational pursuits, as evidenced by the documents submitted, but, at this time, the Applicant has not provided sufficient documentation for the Board to consider an upgrade. Relief on this basis is 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 or any other evidence related to his discharge 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 15560C), Change 9, effective
22 Jul 94 until 02 Oct 96, 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 80 Attempt to make, alter, counterfeit, tamper with, or sell a false or unauthorized pass if adjudged at a Special or General Court-Martial.
C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

 E. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .

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 “ http://Boards.law.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:

                  Secretary of the Navy Council of Review Boards
                   Attn: Naval Discharge Review Board
                   720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023

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