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

 ex-YNSN, USN
Docket No. ND01-01054

Applicant’s Request

The application for discharge review, received 010807, requested that the characterization of service on the discharge be changed to honorable.  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 020307.  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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  My discharge was inequitable.  I had nine good years of service up until September 1999.  Which I was accused of larceny/adultery and was given 30 days restriction and extra duty and reduction in rat to E-3. I did my punishment and accepted it.  Now then comes NAF ATSUGI, Japan, Navy Exchange.  Accusing me of conspiracy/larceny with another employee of Navy Exchange.  Now on 8Mar00 I signed form NAVPERS 1626/7 electing a trial by court-martial which is my right under UCMJArt 15.  I was not given that right to prove my innocence.  And I want to know why?  They accused me of stealing a car radio from the Navy Exchange.  Which if you see the video it shows the other employee with the radio in her possession.  The video showed me doing nothing wrong.  Now, NAF ATSUGI, Legal Office or my attorney Lt L_ of Navy Legal Service Office, Yokosuka has the video.  Now NAF Atsugi, Japan Legal Office tried to accuse me of making $400.00 worth of personal phone calls from the Admin Office.  Which I did make those calls.  And I paid for them.  But I know I am not the only who makes personal calls from the office.  And plus, I went to a Admin Board for conspiracy/larceny for a NEX radio not phone calls.  All I wanted was to prove my innocence and stay in up to 10 yrs and get out at high year tenure and get my severance pay of about $15,000.00 Now I am out all I want is to have my discharge upgraded to an Honorable vice General. Thank you for your consideration.

Documentation

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

Thirty-three pages from applicant's service record
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   USN 		910717 - 941011	HON
		   USN			941012 - 980226	HON
	Inactive: USNR (DEP)	901123 - 910716	COG

Period of Service Under Review:

Date of Enlistment:  980227		Date of Discharge:  000721

Length of Service (years, months, days):

	Active:    02  04  25
	Inactive:  None

Age at Entry:  24			Years Contracted:  3

Education Level:  12			AFQT:  32

Highest Rate:  YN3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (3)	Behavior:  3.00 (3)		OTA:  3.71

Military Decorations:  None

Unit/Campaign/Service Awards:  NAM, GCM (2), NDSM, OSR, BER

Days of Unauthorized Absence:  None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events:

990930:	NJP for violation of UCMJ, Article 121 (2 specs): (1) Wrongfully appropriate $2600.00 the property of Aviation Storekeeper Second Class on Jun99, (2) Wrongfully appropriate 17,000 yen the property of Aviation Storekeeper Second Class on 11Jun99, violation of UCMJ, Article 134: Adultery in Mar99, to wit: wrongfully have sexual intercourse with a woman not is wife.
	Award: Restriction and extra duty for 30 days, reduction to YNSN.  No indication of appeal in the record.

000308:	Charges against UCMJ, Article 81: Conspiracy, conspire with another to commit an offense under the UCMJ on about 9Jan; to wit: larceny of a Pioneer Car Stereo, of a value of about $399.00 and Article 121: Larceny, steal a Pioneer Car Stereo, military property, a value of $399.00.  Applicant demand trial by court-martial.

000308:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

000314:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

000427:	Applicant paid $404.78 in payment of unofficial phone calls during the billing period of September and October 1999.

000501:	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 honorable conditions (general).

000515:	Commanding officer directed discharge under honorable conditions (general) 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 000721 general (under honorable conditions) for misconduct due to commission of a serious offense (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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 (C and D).

Issue 1.  The applicant desires to know why he was administratively separated prior to the convening of a court-martial for the offenses of which he was accused.  The answer is, the accused has the right to request a court martial but it is the Court Martial Convening Authority who determines whether a particular case warrants convening a court martial.

The NDRB is chartered to review the discharges of former Navy and Marine Corps service members to determine if an impropriety or inequity existed during the discharge process.  Based on navy regulations, the applicant’s discharge was proper and equitable.  The applicant was found guilty of violating UCMJ, Article 121 (2 specs) and was charged with violation of UCMJ, Article 81.  Violation of these Articles of the UCMJ constitute the commission of a serious offense. On 000501, 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 honorable conditions (general). The applicant’s length of service is only one of several factors considered in determining the characterization of service.  The record is devoid of evidence that the applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

The applicant’s discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the applicant’s enlistment.  Additionally, 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.  However, 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 any 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, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct.  The applicant did not provide sufficient documentation to warrant an upgrade to his discharge.  He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 28, effective 
30 Mar 00 until 29 Aug 00, Article 1910-142  [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B.  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.  

C.  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.

D.  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