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

ex-EMFN, USN
Docket No. ND01-00388

Applicant’s Request

The application for discharge review, received 010207, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The applicant requested 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 010615.  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.  To Whom it my Concern

I serviced in the United States Armed Forces for a period of seven years.  Reviving an Honorable and Other then Honorable Discharge with an RE-4 code.  As my military recourd will show that I had high evallation with the exellation with the exception of one N.J.P.  It was only one isolated minor offense. I believe that the offense I comitted hower wrong (and Id never do again and that I have learned from my mistake).  The punishent I recived was to harsh I saw higher ranking personnal doing the same offense or worse and not getting this type of discharge.  In my four years and two commands it took a two year period for the Navy to get my service record upgraded, which caused me to miss multiple tests for promotions and financial increases.  I was promoted to E-4 in both branchs and recommened for E-5.  I had finished my tour in the United States Navy.  I have inclosed letters from co-workers and friends that show my character as a citizen after discharge.  I an hoping to better my country, myself and family by getting my discharge changed.  I would like to thank you for your time and consideration in this matter.

Documentation

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

Copy of high school diploma
Copy of school records
Copy of DD Form 214 from Army National Guard
Copy of certificate of training dated July 11, 1983
Promotion paper
Character/job reference dated November 19, 2000
Letter from captain to Senator dated January 6, 2000
Character/job reference dated January 14, 2000
Character/job reference undated
Character/job reference dated January 12, 2000
Copy of applicant's DD Form 214
Copy of certificate of appointment dated June 16, 1988
Copy of enlisted performance record
Two pages of Navy occupation/training and award history
Letter from Board for Correction of Naval Records (BCNR) to Secretary of the Navy dated May 4, 1987
Letter from BCNR to applicant dated May 8, 1987
Three pages from applicant's service record
Copy of certificate of achievement dated April 19, 1991
Copy of competency record from Tri-County Vocational-Technical Adult Training Record
Copy of certificate of completion dated January 15, 1993
Copy of certificate of graduation dated October 21, 1994
Copy of certification of written examination from Swissland Schools, Inc dated October 20, 1994
Letter from Pima County Attorney dated February 18, 2000
Copy of child support payment history dated October 11, 2000 (2 pages)
Copy of police record check dated August 15, 2000
Copy of applicant's resume
Character/job reference dated November 19, 2000
Copy of driving history dated December 4, 2000
Copy of Department of Transportation Exam dated September 6, 2000
Copy of two pages from a web site

PART II - SUMMARY OF SERVICE

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

	Active:   UANG		820927 - 850926	HON
	Inactive: USNR (DEP)	850927 - 851020	COG

Period of Service Under Review:

Date of Enlistment:  851021		Date of Discharge:  891020

Length of Service (years, months, days):

	Active:    04  00  00
	Inactive:  None

Age at Entry:  22			Years Contracted:  4

Education Level:  12			AFQT:  27

Highest Rate:  EM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.24 (5)	Behavior:  2.96 (5)		OTA:  2.96

Military Decorations:  None

Unit/Campaign/Service Awards:  AFEM, SSDR (2)

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:

870320:	Retention Warning:  Advised of deficiency (The command has received letters of indebtedness indicating lack of responsibility and poor personal conduct on your part.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

890905:	NJP for violation of UCMJ, Article 108: Wrongfully sell government property, without proper authority on 23Mar89, violation of UCMJ, Article 134: Wrongfully receive stolen government property on Nov88.
	Award: Forfeiture of $446 per month for 2 months, restriction and extra duty for 45 days, reduction to EMFN.  No indication of appeal in the record.

890913:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

890926:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

891004:	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.

891012:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.  Commanding officer’s comments (verbatim): EMFN (applicant) is an administrative and disciplinary burden to NIMITZ and the naval service.  Moral turpitude crimes such as theft cannot be tolerated in the naval service.  EMFN (applicant) possesses no potential for further fruitful service.  Accordingly, I concur with the Board's findings and recommendation and strongly recommend he be separated from the naval service with an Other Than Honorable discharge.  A copy of the Board record of proceedings has been delivered to Counsel for the Respondent.

891018:	CNMPC 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 891020 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 the applicant’s issue 1, the Board found the applicant implies that a permissive doctrine exists whereby one in the military is allowed a “single misdeed”.  The Board believes that the applicant is confusing this with the civilian world wherein some offenses are treated with leniency because they are a first time incident on an otherwise clear record.  No such leniency exists in the military.  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.
 
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 (D).  Those factors include, but are not limited to, the following:  evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct.  At this time, the applicant has not provided sufficient documentation of good character and conduct.  Therefore no relief will be granted.  The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15-years from the date of discharge.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560A), Change 7, effective 
25 May 89 until 20 Aug 89, 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 108, wrongfully selling government property 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 "afls10.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