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NAVY | DRB | 2005_Navy | ND0500989
Original file (ND0500989.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-ENFN, USN
Docket No. ND05-00989

Applicant’s Request
The application for discharge review was received on 20050524. The Applicant requests that his 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 designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051215. After a thorough review of all available 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 characterization of the discharge shall not change. The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to commission of a serious offense.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“Trying TO WORK FOR BIG Shipping Merchant Ships. Union requires if AVETERAN, THAT I WOULD NEED AN HONORABLE Discharge FOR VETERAN ASSISTANCE TO PAY FOR Engineering Schools & other benefits act.... I’m Currently in THE MERCHANT Marines. I’VE been an In the Merchant marine Since I Got out of the Navy. I still Love the Navy & if it wasn’t FOR the POOR Judgment made when I was younger, I would of Retired in the Navy. I’m asking from the bottom of my Heart to Please Reconsider Me for an upgrade to Honorable discharge! It would make a Big difference in my Life & I Know it would on yours too, By Giving a FELOW Shipmate a Second Chance or Forgiveness. Please I ASK for an Honorable discharge Upgrade. THE water is my life & will always be! THE Union witch is (SIU) Requires HONORABLE discharge for Veterans Assistance & Benefits. Trying to Get ON Big Ships WERE I BELONG. So I Can Continue my Naval CARREER! Thank You for Your time& God bless!

[Signed] R_ N_”
Documentation
The Applicant submitted no documentation to be considered in addition to the service record.


PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19880714 – 19881207               COG
          Active: USN                        19881208 – 19921203               HON

 Period of Service Under Review :
Date of Enlistment: 19921204             Date of Discharge: 19981005

 Length of Service (years, months, days):

         Active: 05 10 01 (Total Active Service: 09 09 28; Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: none
         Confinement:              62 days

 Age at Entry: 23

 Years Contracted: 5 (20 month extension)

 Education Level: 12                                 AFQT: 28

 Highest Rate: EN2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.75 (4)             Behavior: 3.75 (4)                OTA: 3 .75 (4)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Navy Achievement Medal (2), Navy “E” Ribbon (2), Good Conduct Medal (2), National Defense Service Medal, Sea Service Deployment Ribbon (2), Expert Rifleman Medal.


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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MILPERSMAN, Article 1910-142.
Chronological Listing of Significant Service Events :

921204:  Reenlisted this date for a term of 5 years.

970212:  Applicant charged with violation of UCMJ Article 134 (false swearing) i.e. that his vehicle had been stolen.

970213:  Applicant charged with violation of UCMJ Article 80 (attempt to steal) i.e. attempt to steal $15,000 U. S. currency.

970724:  Applicant extended enlistment for 20 additional months.
980120:  Special Court Martial.
         Charge I: Violation of UCMJ, Article 80.
         Specification: Attempt to steal U.S. currency of value of 15,000.00.
         Charge II: Violation of UMCJ, Article 121.
         Specification: On or about 950717 to 970424, steal property belonging to the U.S. Navy.
         Charge III: Violation of UMCJ, Article 134.
         Specification: On or about 970212 wrongfully and unlawfully subscribe under lawful oath a false statement in substance as follows: That he did not loan, rent or otherwise authorized any person to use or operate his 1993 Dodge Sport Van and that said vehicle was stolen from a military reservation.
         Findings: Not found in Record.
         Sentence: Confinement for 75 days, forfeiture of $400 per month for 3 months, reduction to E-1, Bad Conduct Discharge.
         CA 980326: Only so much of the sentence as provides for confinement for 75 days and RIR to E-1 is approved and will be executed but the execution of the sentence extending to RIR below the grade of pay grade E-3 is suspended for 6 months from the date of this action, at which time unless the suspension is sooner vacated, the suspended part of the sentence will be remitted without further action.

980120:  Applicant to confinement.
        
980323:  Applicant released from confinement and restored to full duty.

 980825:  Chief of Naval Personnel recommended to the Assistant Secretary of the Navy (Manpower & Reserve Affairs) that ENFR N_ (Applicant) be separated from the naval service by reason of misconduct by the commission of a serious offense with an other than honorable characterization of service.

980910:  Assistant Secretary of the Navy (Manpower and Reserve affairs) approved the recommendation of the Chief of Naval Personnel.

980915:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct - commission of a serious offense.

Service Record contains a partial Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19981005 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of under other than honorable conditions. After a thorough review of all available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D). The Board presumed regularity in the conduct of governmental affairs (E).

 When the service of a member of the U.S. Navy has met the standard of acceptable conduct and performance, 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. A special court martial for violations of the UCMJ Article 80 (attempt to steal), Article 121 (larceny), and Article 134 (false swearing) tarnished the Applicant’s record. Each violation of Article 121 and 134 is defined by reference (A) as the commission of a serious offense, the misconduct for which the Applicant was discharged. There is credible evidence in the record that the Applicant committed a serious offense. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Separations under these conditions generally result in a less than honorable characterization of service. Relief denied.

The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization based on the issue of obtaining Veterans' benefits. This issue does not serve to provide a foundation upon which the Board can grant relief. Additionally, the Board has no authority to upgrade a discharge for the purpose of enhancing medical, employment, housing or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. This issue is with out merit, relief denied.

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. The Applicant provided no documentation for the Board’s consideration.

In the absence of a complete discharge package, the Board presumed regularity of governmental affairs. Therefore, the Board presumed the Applicant’s discharge to have been conducted in accordance with that described in reference “A”. The record does document that proper convening authority directed the Applicant’s discharge. If the Applicant feels his discharge was administratively flawed he bears the burden of establishing his issues through the presentation of substantial and credible evidence.

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 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 18, effective
12 Dec 97 until 29 March 2000, Article 1910-142 [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE .
B. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 121 (larceny) and Article 134 (false swearing).

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

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

E. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs .

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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