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

 ex-ADAN, USN
Docket No. ND02-00440

Applicant’s Request

The application for discharge review, received 020228, 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 021029.  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, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  I joined the Navy soon after my 18th birthday.  I quickly advanced in rank from Airman Recruit to Airman and did a fine job.  After serving only 13 months, I was awarded the position of Plane Captain and had the responsibility of being in charge of the fighter jets on the U.S.S. Enterprise. I was roomed with a man name AZ3 T_.  All the sailors thought of him as a leader.  They all trusted and looked up to him as I did.  He was looked upon as one of the Chiefs favorites and I believed that I could learn from him and that he was my friend. AZ3 T_ told me that he had stolen another shipmates video card and intended to used it to rent items from video stores and then not return them.  He told me of his plan and I stupidly agreed to go along with it so we went to video stores renting tapes and computer games. The authorities soon found out.  Once confronted, I admitted what we had done.  I was frightened but was anxious to accept the punishment so that I could make amends and carry on with my Navy career.  I expected to lose rank and be restricted to the base as a punishment and I was very willing to accept that.  I was then shocked to find out that I had to leave the Navy early on an "Other Than Honorable Discharge." This, I believe, was a very severe punishment for what I had done and it has been weighing on my mind ever since.  I would like to make things right and continue my Navy career in the reserves and eventually go active again, but this is impossible with my discharge. This is the only time I have ever been in trouble with the law.  It was a very stupid thing for me to do and I hope that you agree that I have suffered a great deal from the punishment that was imposed.  Doing things like this is not my character.  I was caught up and manipulated by AZ3 T_ who was senior to me and whom I trusted.  Since then, I have lived on my own by working full time and completed my schooling for Windows Network Administration at Empire College.  I've maintained great jobs, developed responsibility and proven my leadership again.  I refuse to listen to people who could be bad influence. I respectfully request that this discharge be changed to "Honorable" due to the fact that I am very sorry for what I did.  I know what I did was illegal and wrong and the biggest mistake I have ever made.  If you see fit to change my discharge I will do my best to prove to you that I can be a good, hard working, honest sailor if given second chance.

Documentation

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

Character/job reference dated February 5, 2002
Character/job reference dated January 24, 2002
Character reference from Applicant's father dated February 5, 2002
Character reference from Applicant's stepbrother undated

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	950523 - 951120	COG

Period of Service Under Review:

Date of Enlistment:  951121		Date of Discharge:  980114

Length of Service (years, months, days):

	Active:    02  01  24
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  35

Highest Rate:  ADAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF		Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, AFSM, SSDR, AFEM, NATO

Days of Unauthorized Absence:  None

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

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

Chronological Listing of Significant Service Events:

971111:	NJP for violation of UCMJ, Article 81 (7 specs): (1) Conspire with AZ3 to commit an offense under the UCMJ on 7Sep97, to wit: larceny of Playstation hardware, the property of Blockbuster video, and in order to effect the object of the conspiracy the Applicant did fraudulently use another member's Blockbuster ID card, (2) Conspire with AZ3 to commit an offense under the UCMJ on 7Sep97, to wit: larceny of Playstation NCAA Football video, the property of Blockbuster Video, and in order to effect the object of the conspiracy the Applicant did fraudulently use another member's Blockbuster ID card, (3) Conspire with AZ3 to commit an offense under the UCMJ on 7Sep97, to wit: larceny of Playstation Porsche Challenge video game, the property of Blockbuster Video, and in order to effect the object of the conspiracy the Applicant did fraudulently use another member's Blockbuster ID card, (4) Conspire with AZ3 to commit an offense under the UCMJ on 7Sep97, to wit: larceny of Playstation MLB '98 video game, the property of Blockbuster Video, and in order to effect the object of the conspiracy the Applicant did fraudulently use another member's Blockbuster ID card, (5) Conspire with AZ3 to commit an offense under the UCMJ on 7Sep97, to wit: larceny of Playstation Triple Play video game, (6) Conspire with AZ3 to commit an offense under the UCMJ on 8Sep97, to wit: larceny of a video cassette player with hardware, the property of Blockbuster video, and in order to effect the object of the conspiracy the Applicant did fraudulently use another member's Blockbuster ID card,, (7) Conspire with AZ3 to commit an offense under the UCMJ on 8Sep97, to wit: larceny of a Playstation Final Fantasy video game, the property of Blockbuster video, the property of Blockbuster Video, and in order to effect the object of the conspiracy the Applicant did fraudulently use another member's Blockbuster ID card,, violation of UCMJ, Article 121(7 specs): (1) Steal Playstation hardware on 7Sep97, a value of $495.75, the property of Blockbuster Video, (2) Steal Playstation NCAA Football video game on 7Sep97, a value of $89.93, the property of Blockbuster Video, (3) Steal Playstation Porsche Challenge video game on 7Sep97, a value of $79.85, the property of Blockbuster Video, (4) Steal Playstation MLB '98 video game on 7Sep97, a value of $90.85, the property of Blockbuster Video, (5) Steal Playstation Triple Play video game on 7Sep97, a value of $87.85, the property of Blockbuster Video, (6) Steal a video cassette player with hardware on 8Sep97, a value of $281.05, the property of Blockbuster Video, (7) Steal Playstation Final Fantasy video game on 8Sep97, a value of $94.85, the property of Blockbuster Video, violation of UCMJ, Article 134 (7 specs): (1) ,Wrongfully conceal Playstation hardware on 7Sep97, a value of $495.75, the property of Blockbuster Video, (2) Wrongfully conceal a Playstation NCAA Football video game, a value of $89.93, the property of Blockbuster Video, (3) Wrongfully conceal a Playstation Porsche Challenge video game, a value of $79.85, the property of Blockbuster Video, (4) Wrongfully conceal a Playstation MLB '98 video game on 7Sep97, a value of $90.85, the property of Blockbuster Video, (5) Wrongfully conceal a Playstation Triple Play video game on 7Sep97, a value of $87.85, the property of Blockbuster Video, (6) Wrongfully conceal a video cassette player with hardware on 8Sep97, a value of 281.05,  the property of Blockbuster Video, (7) Wrongfully conceal a Playstation Final Fantasy video game on 8Sep97, a value of $94.85, the property of Blockbuster Video
	Award: Forfeiture of $505 per month for 2 months, restriction and extra duty for 45 days.  Appealed 971116.  Appeal denied 971223.

971124	Commanding Officer’s Endorsement to Applicants Appeal from Punishment (verbatim):  [J_’s (Applicant) is correct in stating this is his first offense.  In fact, he has been a solid performer since he first entered the Navy as evidenced by three Letters of Appreciation in his service record…Although it seems a shame to have a career ended by irresponsibility, thievery, and deceit, in this case it is appropriate…Of his own admission J_’s (Applicant) has committed twenty-one serious offenses against a fellow squadron member…J_’s (Applicant) has disgraced himself, his family, and the Navy.  He has destroyed his integrity and can no longer be trusted…Based on the admission of guilt to both the Legal Officer and the CID detective, and the video evidence obtained from Blockbuster, Strike Fighter Squadron Eight One awarded just and proportionate punishment.]

971223:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

971223:	Applicant advised of his 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.

971223:	Commanding Officer, Strike Fighter Squadron EIGHT ONE, recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

980105:	Commander, Naval Base, Jacksonville, FL 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 980114 under other than 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 believes his other than honorable discharge was very severe punishment and he would like an upgrade to his discharge so he can continue his Navy career in the reserves and eventually return to active duty.  The Applicant’s service record is marred by award of non-judicial punishment (NJP) for offenses tribal by court-martial, and could have resulted in a dishonorable or a bad conduct discharge as well as confinement (E).  The Applicant was charged at NJP for violation of UCMJ Article 81, conspiracy, (7 specifications), Article 121, larceny, (7 specifications), and Article 134, concealing stolen property (7 specifications).  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful disregard for the requirements of basic military discipline and demonstrated he was not fit for further service.  An upgrade to honorable would be inappropriate.  The Applicant is responsible for his actions and must accept the consequences of his misdeeds.  The Applicant’s discharge was proper and equitable.  The Board will not grant relief on this issue.

Issue 2:  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, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should have been provided to receive consideration for clemency, based on post-service conduct.  The evidence submitted by the Applicant does not mitigate his conduct while on active duty, and therefore an upgrade based on post-service conduct is not warranted.  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.  The Applicant can provide additional documentation to support any claims of post-service accomplishments 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.  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.

E.  In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 81, conspiracy, 121, larceny of value more than $100.00, and 134, concealing stolen property value more than 100, if adjudged at a Special or General Court Martial

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