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

 ex-MS3, USN
Docket No. ND02-00610

Applicant’s Request

The application for discharge review, received 020403, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to completed required service.  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 030107.  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, as submitted

1.  On 15 JAN 1991 I was discharged for misappropriation of government property.  I received a General (Under Honorable Conditions) and Misconduct for reason of separation.  I admit that I did not use good judgement in deciding on what to do with the box of crab legs.  I also feel the punishment of misappropriating a box of crabs legs does not justify a General discharge.

2.  I am requesting that the board look at my record as evidence and request for an upgrade to an Honorable discharge, reinstatement MS2, and I would like to return to an Active duty status.

3.  I was reduced to MS3 due to misconduct but however I do have (2) Good Conduct Medals and various training as a Mess Specialist.  I feel my 14 years of Naval service was great.  I received lots of training and eduction for my field in the Navy and would like to continue utilizing my experience as a Cook in the civilian sector.

4.  I do understand the importance of protecting your Naval career.  Personally, I have suffered much but not being able to continue my career and all the benefits of being a part of the Navy.

Documentation

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

Copy of DD Form 214
Copy of Review of Proposed Charges
Copy of Incident/Complaint Report (2 pages)
Copy of Suspect's Acknowledgement and Waiver of Rights
Copy of Voluntary Statement from MS1 P_ J_ H_
Copy of Voluntary Statement from MSC (SW) D_ C_ B_

PART II - SUMMARY OF SERVICE

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

	Active:   USN 		840628 - 900226	HON
		   USN			900227 - 960219	HON
	Inactive: USNR (DEP)	840625 - 840627	COG

Period of Service Under Review:

Date of Enlistment:  960220		Date of Discharge:  990615

Length of Service (years, months, days):

	Active:    03  03  26
	Inactive:  None

Age at Entry:  28			Years Contracted:  6

Education Level:  12			AFQT:  52

Highest Rate:  MS2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.66 (3)	Behavior:  2.00 (3)		OTA:  2.66

Military Decorations:  None

Unit/Campaign/Service Awards:  JUMA, BATTLE"E"(4), MUC, CGMUC(w/"o"device), GCM(2), NDSM, AFEM, SASM(wb*), Pistol Sharpshooter, Rifle Marksmanship, SSDR(5)

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:

960220:	Reenlisted for 6 years onboard USS LAKE ERIE (CG-70) for 6 years.

980814:	NJP for violation of UCMJ, Article 117: Provoking speeches.
	Award:  Restriction and extra duty for 30 days, reduction to E-3 (suspended for 6 months).  No indication of appeal in the record.

980817:	Retention Warning:  Advised of deficiency (Your misconduct of a disciplinary nature with civilian or military authorities, specifically, violation of UCMJ, Article 117: Provoking Words), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

990129:	Reduction in rate vacated due to further misconduct.

990201:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct pattern of misconduct and misconduct due to the commission of a serious offense.  The Applicant was charged with stealing government property in the amount of $275.00 (a box of crab legs) and disposing of the property to a Spanish national.

990201:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

990407:	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 general under honorable conditions.

990430:	Commanding Officer recommended discharge general under honorable conditions by reason of misconduct due to the commission of a serious offense.  Commanding Officer’s comments (verbatim): [Petty Officer B_ (Applicant) has been on board for over two years, and in that time has experienced great difficulty adjusting to this Command.  Petty Officer B_ (Applicant) has been to NJP once since reporting aboard and received a suspended Reduction in Rate.  Prior to the expiration of the suspension, his Reduction in Rate was vacated due to continued misconduct.  Petty Officer B_ (Applicant) denied the allegations and elected an Administrative Board.  The Board was held on 7 April 1999 for Commission of a Serious Offense.  The Board found that he had committed a serious offense and recommended a discharge characterized as General Under Honorable Conditions.  In my opinion, he has no potential for future active honorable service; therefore, I concur with the Board’s findings.  Separation with a General Under Honorable Conditions discharge by Reason of Misconduct – Commission of a Serious Offense is appropriate and so ordered.] 

990608:	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 990615 with a discharge characterization of 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 requested the Board upgrade his discharge to honorable based upon the fact that he believes misappropriating a box of crab legs does not justify a General discharge.  For the record, the Applicant was found by an Administrative Discharge Board to have committed a serious offense and the Board recommended separation due to this misconduct.  Larceny is a serious offense against the UCMJ, triable by court martial, and could have resulted in confinement and a Bad Conduct Discharge.  The discharge was proper and equitable.  Relief denied.

Issues 2 & 3:  The receipt of commendatory awards and favorable performance evaluations during the Applicant’s enlistment do not guarantee an honorable discharge.  In addition to the above misconduct, during this enlistment period, the Applicant’s service record is marred by award of non-judicial punishment for violation of UCMJ Article, 117: provoking speeches.  A characterization of service of under honorable conditions (general) is warranted when significant negative aspects of a service member’s conduct or performance of duty outweigh the positive aspects of the member’s military record.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service and demonstrated he was unsuitable for further service.  The record is devoid of any evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Furthermore, the NDRB has no authority to make recommendations to permit reenlistment, reentry, or reinstatement into the naval service or any other branch of the Armed Forces.  Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment.  A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  Relief denied.

Issue 4:  The Veterans Administration determines eligibility for post service benefits not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans’ benefits or improving employment opportunities, this issue does not serve to provide a foundation upon which the Board can grant relief, therefore, relief denied.

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 be provided to receive consideration for relief, based on post-service conduct.  

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.

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