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NAVY | DRB | 2005_Navy | ND0500675

Original file (ND0500675.rtf) Auto-classification: Denied

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

ex-OSSR, USN
Docket No. ND05-00675

Applicant’s Request

The application for discharge review was received on 20050309. 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 20050727. 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/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“I am seeking employment by the Jacksonville Sheriff’s Office
I have been in no trouble or convicted of any crime since I have been discharged from the military.”

Documentation

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

Letter from BCNR to Congresswoman C___ B___, dtd September 24, 2004
Letter from Congresswoman C___ B___ to Applicant, dtd December 7, 2004

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

         Inactive: USNR (DEP)     010430 - 010909 COG
         Active: None

Period of Service Under Review :

Date of Enlistment: 010910               Date of Discharge: 040109

Length of Service (years, months, days):

         Active: 02 03 30
         Inactive: None

Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 35

Highest Rate: OSSA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance: 2.00 (1)             Behavior: 1.00 (1)                OTA: 2.33

Military Decorations: None

Unit/Campaign/Service Awards: Sea Service Deployment Ribbon, National Defense Service Medal

Days of Unauthorized Absence: 3

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

Chronological Listing of Significant Service Events :

021113: Summary Court-Martial.
         Charge I : violation of the UCMJ, Article 121.
         Specification: Steal check number 1071, the property of Operation Specialist Seaman B___ K. B___, U.S. Navy, of some value on or about 020915. Charge II : violation of the UCMJ, Article 123a: (14 Specs) .
         Spec 1 : Did, at the Navy Exchange located at Norfolk Naval Base, Norfolk, Virginia, with the intent to defraud and for the procurement of things of value, wrongfully and unlawfully make and utter to the Navy Exchange Service Command (NEX), a certain check upon the Navy Federal Credit Union, on the date and in the figures as follows, to wit: check number 155, dated 7 June 2002, for a total amount of $113.79, then knowing that he, the maker thereof, did not or would not have sufficient funds in or credit with such bank for the payment of the said check in full upon their presentment; Spec 2 : Did, at the Navy Exchange located at Norfolk Naval Base, Norfolk, Virginia, with the intent to defraud and for the procurement of things of value, wrongfully and unlawfully make and utter to the Navy Exchange Service Command (NEX), a certain check upon the Navy Federal Credit Union, on the date and in the figures as follows, to wit: check number 156, dated 8 June 2002, for a total amount of $148.73, then knowing that he, the maker thereof, did not or would not have sufficient funds in or credit with such bank for the payment of the said check in full upon their presentment; Spec 3 : Did, at the Navy Exchange located at Norfolk Naval Base, Norfolk, Virginia, with the intent to defraud and for the procurement of things of value, wrongfully and unlawfully make and utter to the Navy Exchange Service Command (NEX), a certain check upon the Navy Federal Credit Union, on the date and in the figures as follows, to wit: check number 158, dated 8 June 2002, for a total amount of $130.79, then knowing that he, the maker thereof, did not or would not have sufficient funds in or credit with such bank for the payment of the said check in full upon their presentment; Spec 4 : Did, at the Navy Exchange located at Norfolk Naval Base, Norfolk, Virginia, with the intent to defraud and for the procurement of things of value, wrongfully and unlawfully make and utter to the Navy Exchange Service Command (NEX), a certain check upon the Navy Federal Credit Union, on the date and in the figures as follows, to wit: check number 160, dated 9 June 2002, for a total amount of $99.96, then knowing that he, the maker thereof, did not or would not have sufficient funds in or credit with such bank for the payment of the said check in full upon their presentment; Spec 5 : Did, at the Navy Exchange located at Norfolk Naval Base, Norfolk, Virginia, with the intent to defraud and for the procurement of things of value, wrongfully and unlawfully make and utter to the Navy Exchange Service Command (NEX), a certain check upon the Navy Federal Credit Union, on the date and in the figures as follows, to wit: check number 162, dated 13 June 2002, for a total amount of $69.76, then knowing that he, the maker thereof, did not or would not have sufficient funds in or credit with such bank for the payment of the said check in full upon their presentment; Spec 6 : Did, at the Navy Exchange located at Norfolk Naval Base, Norfolk, Virginia, with the intent to defraud and for the procurement of things of value, wrongfully and unlawfully make and utter to the Navy Exchange Service Command (NEX), a certain check upon the Navy Federal Credit Union, on the date and in the figures as follows, to wit: check number 168, dated 15 June 2002, for a total amount of $68.96, then knowing that he, the maker thereof, did not or would not have sufficient funds in or credit with such bank for the payment of the said check in full upon their presentment; Spec 7 : Did, at the Navy Exchange located at Norfolk Naval Base, Norfolk, Virginia, with the intent to defraud and for the procurement of things of value, wrongfully and unlawfully make and utter to the Navy Exchange Service Command (NEX), a certain check upon the Navy Federal Credit Union, on the date and in the figures as follows, to wit: check number 179, dated 19 June 2002, for a total amount of $122.19, then knowing that he, the maker thereof, did not or would not have sufficient funds in or credit with such bank for the payment of the said check in full upon their presentment; Spec 8 : Did, at the Navy Exchange located at Norfolk Naval Base, Norfolk, Virginia, with the intent to defraud and for the procurement of things of value, wrongfully and unlawfully make and utter to the Navy Exchange Service Command (NEX), a certain check upon the Navy Federal Credit Union, on the date and in the figures as follows, to wit: check number 181, dated 20 June 2002, for a total amount of $29.50, then knowing that he, the maker thereof, did not or would not have sufficient funds in or credit with such bank for the payment of the said check in full upon their presentment; Spec 9 : Did, at the Navy Exchange located at Norfolk Naval Base, Norfolk, Virginia, with the intent to defraud and for the procurement of things of value, wrongfully and unlawfully make and utter to the Navy Exchange Service Command (NEX), a certain check upon the Navy Federal Credit Union, on the date and in the figures as follows, to wit: check number 182, dated 21 June 2002, for a total amount of $132.74, then knowing that he, the maker thereof, did not or would not have sufficient funds in or credit with such bank for the payment of the said check in full upon their presentment; Spec 10 : Did, at the Navy Exchange located at Norfolk Naval Base, Norfolk, Virginia, with the intent to defraud and for the procurement of things of value, wrongfully and unlawfully make and utter to the Navy Exchange Service Command (NEX), a certain check upon the Navy Federal Credit Union, on the date and in the figures as follows, to wit: check number 196, dated 29 June 2002, for a total amount of $110.78, then knowing that he, the maker thereof, did not or would not have sufficient funds in or credit with such bank for the payment of the said check in full upon their presentment; Spec 11 : Did, at the Navy Exchange located at Norfolk Naval Base, Norfolk, Virginia, with the intent to defraud and for the procurement of things of value, wrongfully and unlawfully make and utter to the Navy Exchange Service Command (NEX), a certain check upon the Navy Federal Credit Union, on the date and in the figures as follows, to wit: check number 197, dated 29 June 2002, for a total amount of $50.00, then knowing that he, the maker thereof, did not or would not have sufficient funds in or credit with such bank for the payment of the said check in full upon their presentment; Spec 12 : Did, at the Navy Exchange located at Norfolk Naval Base, Norfolk, Virginia, with the intent to defraud and for the procurement of things of value, wrongfully and unlawfully make and utter to the Navy Exchange Service Command (NEX), a certain check upon the Navy Federal Credit Union, on the date and in the figures as follows, to wit: check number 200, dated 30 June 2002, for a total amount of $146.67, then knowing that he, the maker thereof, did not or would not have sufficient funds in or credit with such bank for the payment of the said check in full upon their presentment; Spec 13 : Did, at the Navy Exchange located at Norfolk Naval Base, Norfolk, Virginia, with the intent to defraud and for the procurement of things of value, wrongfully and unlawfully make and utter to the Navy Exchange Service Command (NEX), a certain check upon the Navy Federal Credit Union, on the date and in the figures as follows, to wit: check number 202, dated 3 July 2002, for a total amount of $45.82, then knowing that he, the maker thereof, did not or would not have sufficient funds in or credit with such bank for the payment of the said check in full upon their presentment; Spec 14 : Did, at the Navy Exchange located at Norfolk Naval Base, Norfolk, Virginia, with the intent to defraud and for the procurement of things of value, wrongfully and unlawfully make and utter to the Navy Exchange Service Command (NEX), a certain check upon the Navy Federal Credit Union, on the date and in the figures as follows, to wit: check number 203, dated 3 July 2002, for a total amount of $110.58, then knowing that he, the maker thereof, did not or would not have sufficient funds in or credit with such bank for the payment of the said check in full upon their presentment. Charge III : violation of the UCMJ, Article 123a: Did, in and around the Hampton Roads, Virginia area on or about 15 September 2002, with intent to defraud, falsely make, in it’s entirely the signature of Operation Specialist Seaman B___ K. B____, U.S. Navy, as an indorsement to a certain check in the following words and figures, to wit: check number 1071, dated 13 September 2002, by adding thereto the signature of Operation Specialist Seaman B___ K. B____, which said writing would, if genuine, apparently operate to the legal harm of another.
         Finding: to Charge I and the specification thereunder, guilty. To Charge II and specifications 1 through 14 thereunder, guilty. To Charge III and the specification thereunder, guilty.
         Sentence: Reduction in rate to pay grade E-1, forfeiture of $600.00 pay per month for 1 month, and confinement for 14 days.
         CA action 021204: Sentence approved and ordered executed. The reduction in rate and forf shall apply to pay becoming due on and after the date of this action.

021205: Retention Warning: Advised of deficiency (Summary Court-Martial held on 13 Nov 02 for violation of the UCMJ, Article 121-Larceny; Article 123a (14 Specs)-Wrongfully and unlawfully make and utter checks; and Article 123-Forgery), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

030317: NJP for violation of UCMJ, Article 91: Disobeying a lawful order, violation of UCMJ Article 121: Larceny from a Greek national. Award: Forfeiture of $300.00 pay per month for 1 month (suspended for 6 months), restriction and extra duty for 30 days. No indication of appeal in the record.

031117: NJP for violation of UCMJ, Article 121: Steal property valued at about $38.00 from Navy Exchange. Award: Restriction and extra duty for 45 days. No indication of appeal in the record.

031124: Applicant notified of intended recommendation for discharge with the least favorable characterization of service under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct commission of a serious offense.

031124: Applicant advised of 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

031215: Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense.

031223: Commander, Cruiser-Destroyer Group EIGHT authorized the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

040102: Applicant to unauthorized absence from USS THEODORE ROOSEVELT (CVN-71) at Norfolk, VA.

040105: Applicant surrendered onboard USS THEODORE ROOSEVELT (CVN-71). (3 days).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040109 under other than honorable conditions for misconduct due to a pattern of misconduct (A). 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 (B and C).

When the service of a member of the 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 service was marred by two nonjudicial punishment proceedings and a summary court-martial conviction for violations of Articles 91, 121 and 123a of the UCMJ. The Applicant also spent three days in unauthorized absence which was never adjudicated. 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.

Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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 Naval service. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided any relevant documentation for the Board to consider. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. Relief 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. 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), re-issued October 2002, effective 22 Aug 2002 until Present, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

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

C. 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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NAVY | DRB | 2005_Navy | ND0500675

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