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

ex-BMSA, USN
Docket No. ND00-00522

Applicant’s Request

The application for discharge review, received 000317, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance hearing discharge review.  The applicant listed AMERICAN LEGION as his representative on the DD Form 293.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 000724.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  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 – commission of a serious offense, authority:  NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  (EQUITY ISSUE)  This former member avers that mitigating factors, his ex-wife, contributed to and mitigated his misconduct of record.  On this basis, he opines that upgrade of his service period to honorable is warranted.

2.  (EQUITY ISSUE)  As the documentary evidence of record supports, this former member opines that his post-service conduct has been sufficiently creditable to warrant the Board’s clemency relief as authorized under provisions of SECNAVINST 5420.174C, enclosure (1), paragraph 9.3.

Documentation

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

Copies of DD Form 214 (3).
Letter from Mr. P____, dtd 941104
Letter from Mr. R__, dtd Feb 96
Letter from Mr. G______, dtd 990122
Letter from Mr. K____, dtd 000629
Letter from Mr. P_______, dtd 000528

PART II - SUMMARY OF SERVICE

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

	Active:   USN			None
	Inactive: USNR (DEP)	851213 - 860316	COG

Period of Service Under Review:

Date of Enlistment:  860317		Date of Discharge:  900105

Length of Service (years, months, days):

	Active:    03  09  19
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 

Education Level:  12			AFQT:  30

Highest Rate:  BM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.70 (4)	Behavior:  3.52 (5)		OTA:  3.70

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDA(2), MUC

Days of Unauthorized Absence:  None 

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

891122:	Summary Court-Martial for violation of UCMJ, Article 123a: Forgery.
	Sent:  Confinement for 20 days, forfeiture of $200.00 per month for 1 month, reduction to E-2.
	CA (891122) Approved and ordered executed.

891127:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

891127:  	Applicant advised of his rights and having elected 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.

891220:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense - SNM found guilty in SCM of UCMJ Art 134 -Uttering worthless checks - failure to maintain sufficient funds.  SNM has continued to write "bad checks" subsequent to the initial 27 specifications of the SCM at the following location: Navy Resale Activity Oakland CA dtd 891027; outstanding debt $72.78.  Alaska Airlines dtd 891102; outstanding debt $930.00.  Navy Resale Activity San Diego, CA dtd 891110; outstanding debt $1150.01.  Phone Center NAVSTA Long Beach CA dtd  891101, outstanding debt $20.64.  Devon Home Center, SNM repaid part of bad check, outstanding debt, $268.44.  Commanding officer’s comments:  SVCMN has intentionally continued to write bad checks knowing that his checking account has been closed.  This occurred even after his case was referred to court martial.  He has demonstrated a total disregard for authority and the Navy’s policies towards payment of just debts.  I strongly recommend that an other than honorable discharge be awarded with no suspension.  SNM meets the qualification for an other than honorable discharge due to his SCM.  He has no potential for further naval service.  He is a poor example for the military and has become an administrative burden to the Navy and this command.

891228:	CNMPC directed the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

920724:	NDRB documentary record review Docket Number ND91-02078 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 900105 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).

In response to the applicant’s issue 1, the Board found that although there may have been mitigating factors that contributed to the applicant’s financial problems, it does not change the fact that the applicant had numerous checks that were written for substantial amounts of money considered “worthless checks.”  The applicant continued to write these “worthless checks” even after returning from his deployment, in an amount totaling over $2,400.00.  The applicant presented no evidence to show that he had stopped writing bad checks in any reasonable timeframe from the time he found out that he was having financial difficulties.  The applicant is responsible for his actions and must accept the consequences of his misdeeds.  The Board will not grant relief on the basis of this issue.

In the applicant’s issue 2, there is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the Service.  However, the Board is authorized to consider post-service factors in the recharacterization of a discharge.  The Board took into account the applicant’s recommendations from employers, but found this was not sufficient to warrant an upgrade.  No relief will be granted based on this issue.

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 [e.g., 123a, checks, etc. insufficient funds, intent to deceive] 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