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

ex-FR, USN
Docket No. ND02-00715

Applicant’s Request

The application for discharge review, received 020429, 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 030116.  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 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  Gentleman I urge you to look over this suspicious discharge and overturn it and give me my deserving honorable discharge.  I also urge you to stricken the misconduct from my DD-214.  The evidence in my case is purely circumstantial.  I've never really been given a fair hearing in this matter.  At captain's mast I was never given a chance by the Captain to explain my case and my appeal fell deaf ears as my JAG pointed out many inconsistencies in the prosecution's case.  There is only on witness to the crime and he is very inconsistent with his testimony.  He tells many different stories of what really happened.  I was never put in a line up to be identified by the victim.  I gave consent to have a search of all my property done, the search was negative.  Since being discharged I've also become a college graduate since then.  I will receive an associate degree in criminal justice on May 4, 2000.  I've also become an American Citizen and a voter since then.  I've also been accepted to 2 colleges the University of Miami and Florida International University.  I beg you gentleman to reconsider my discharge and give me my life back.  I was robbed of my military career and my life by this false conviction.  I still love and respect the many good people serving in our armed forces.  Just because I was falsely discharged by the act of a few individuals I don't blame our great military and our great government.  I would even go as far as to reenlist if given my rights as a soldier back.  I thank you gentleman for considering my discharge and whatever your decision in my case maybe, god bless you all.  I hope and I pray you will see my discharge was false and upgrade it to it's rightful honorable discharge.  Clemency should be warranted in this case because it is an injustice for me to continue to suffer the adverse consequences of a bad discharge.

Documentation

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

Copy of DD Form 214
Employment Recommendation Letter from T_ A. M_
Letter of Recommendation from M_ L_
Employment Reference Letter from M_ C_
Acceptance Letter to Florida International University
Admission Approval Letter to Miami University
Certificate of Naturalization
Copy of Degree Audit from Miami Dade Community College (2 pages)
Letter from Applicant
Copy of Associate in Arts Degree from Miami Dade Community College
Copy of Degree Audit from Miami Dade Community College (3 pages) 

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	930929 - 940822	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  940823		Date of Discharge:  950414

Length of Service (years, months, days):

	Active:    00  07  22
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  67

Highest Rate:  FR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NOB		Behavior:  2.80 (1)		OTA:  2.80

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

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 3630600.

Chronological Listing of Significant Service Events:

950203:	NJP for violation of UCMJ, Article 122: By means of force steal from an Italian female, a brown shoulder bag of some value.
	Award:  Forfeiture of $427.00 pay per month for 1 month, restriction and extra duty for 30 days.  No indication of appeal in the record.

950203:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by all serious offenses under the UCMJ in your current enlistment [Extracted from case file].

950203:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board [Extracted from case file].

950222:	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 [Extracted from case file].

950310:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
 
950403:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense [Extracted from case file].

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 950414 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).

The Applicant had nonjudicial punishment imposed on him for a violation of Article 122, UCMJ, Robbery.  The Applicant was notified he was being considered for administrative separation from the U.S. Navy.  He elected to appear before an administrative hearing board.  Based upon a preponderance of the evidence the Board found, by a vote of 3-0, the Applicant committed misconduct and his service should be characterized as other than honorable.  The Applicant was represented at the hearing by a member of the U.S. Navy's Judge Advocate General's Corps.  He was afforded all of his rights and provided proper due process.  The NDRB presumes regularity in the conduct of governmental affairs.  The NDRB failed to find any evidence that the Applicant's discharge was improper or inequitable.  Relief denied.  

Normally, to permit relief, the discharge or characterization of the Applicant's service had to be improper or inequitable.  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.  Relief denied.

The Applicant is reminded that the period of eligibility for a personal appearance hearing is 15 years from the date of discharge.  The application package must be submitted to the NDRB prior to the expiration of the 15 year period.  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 9, effective 
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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