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

ex-SN, USN
Docket No. ND03-01248

Applicant’s Request

The application for discharge review was received on 20030717.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  The Applicant requests 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 20040526.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL, authority: NAVMILPERSMAN, Article 3630650.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “To whom it may concern, 

My name is V_ L. M_, I was in the Navy from August 14th, 1989 until November 10th 1993.  The type of discharge I received was an “Other Than Honorable Discharge in Lieu of Court Martial” due to being charged with a crime I didn’t commit.  The charges were 12 counts of forgery, and 6 counts of larceny.  Now, I’m aware of the fact that everyone says, I’m innocent, “but that’s the reason why I’m submitting this request for the review of my discharge.  I am innocent, and I intent to briefly explain to you my reasoning with facts.  Hopefully, after listening and hearing these facts with an unbiased ear, you too will share my opinion.  I didn’t receive due process and justice wasn’t served.  I come before this board as a humble man, able to admit my faults when I was wrong.  I’m saying this for I am only seeking to obtain what I feel I’ve rightfully gained as a result of my voluntary 4 year committed effort to serve my country and that is my “General Discharge Under Honorable Conditions” and the Veterans Benefits that comes with that discharge.  Also, I would like to add the fact that there is a “Page 13” in my service record for an “Unauthorized Absence” that was disputed and was/is supposed to be removed from my service record.  I wasn’t “UA” and this was a misunderstanding and lack of communication between my LPO and Chief at that time (In Naples, Italy).  I’m bringing this to your attention due to the fact that my service record will be reviewed and under scrutiny and if that “Page 13” just happens to still be there, I wouldn’t want that bogus document to influence anyone’s judgement and hinder any chance of me receiving a decision in my favor.  Considering the fact that had not this court martial case ever taken place the “Page 13” wouldn’t be an issue an/or factor pertaining to my discharge.  Thank you for your time and effort.  With all due respect

I shall start at the beginning.  On the morning in which I was returning a loaned car, I discovered a checkbook belonging to a lifelong friend, A_ J. B_ that he left in the car the night before.  I phoned him immediately to notify him of this occurrence.  Mr. B_ was attending the Univ of Georgetown at the time, and I was stationed at FT. Myers Army Base.  He informed me that he had no way of getting to me, nor I to him at that time and so he told me to hold on to it for him.  He also made me aware of the fact that there was noting left in the account, so there wasn’t any urgency for him to retrieve the checkbook nor for me to find a way to return it to him.  And with that established I put the checkbook in my desk drawer, next to my checkbook.  This was in May of 1992.  I would like to interject the fact that during that time frame it is documented that I had been overdrawing my checking account with my own checks, only because I knew that with the direct deposit I had, the check would always be covered.  I’m stating this not to justify my actions, but to make a point of reference.  Continuing, I left the VA, Wash D.C area to Ohio 3 times; Jun 92, Jul 92, and Aug-Sep 92, each time for approximately 3 to 7 days by plane.  This information is also documented.  Now, in Oct 92 I was informed that a Special Agent D_ F_, with the Army’s CID, wanted to speak to with me.  She asked me if I knew an A_ B_ and a H_ H_ (who was an acquaintance of my barrack roommate D_ H_ & myself) and I answered in the affirmative.  She then asked me if I knew about a checkbook belonging to Mr B_, and I answered “Yes”.  Then she asked if I knew about 6 checks from that checkbook being cashed at the FT Myers Army PX at the Navy Annex’s Navy, Marine Corps Exchange each for $125.00 totaling $750.00.  To my surprise and puzzlement of hearing this, I answered with a very confused and emphatic “No!  I was then asked by SA F_ to write /sign my name three times on a piece of paper and also the names of Mr B_ and Mr H_.  I complied, having nothing to hide.  I would also like to add that fact that the checks in the checkbook were carbon copy checks, so any information written on any prior checks was right there at hand, signatures, ssn included.  About two weeks later SA F_ called my boss for him to tell me to come see her again.  On this day she informed me that handwriting samples were taken from Mr B_, Mr H_ and myself and of all the samples taken mine looked “Most like “(Not is)” the writing on the checks.  After that, I was intensely interrogated by various men, then the Army charged and fingerprinted me for the crime of forging two signatures on six checks belonging to someone else, that were in my possession and cashing them illegally.  This just sounds like an open and shut case, right?  In retrospect, I feel that I naively opened the door to my demise in the military due to my willingness to cooperate and speak freely about the situation.  Reason being, I knew I was innocent and clueless that the crime had even had even taken place, until I was questioned by SA F_.  But, had I held my tongue and retained my legal representation initially I’m sure things would have gone quite differently.  Since, I was in the Navy the Army had to transfer the case over to the Navy for a trial.  During this time Mr H_, who wasn’t put on legal hold, transferred duty stations from the Navy Annex to a base in Japan, leaving me as the only suspect in this case in the VA, DC, area.  Several months later, I received information about my appointed attorney, LT L_ N. B_, a JAG Officer with the Navy.  This was the beginning of things getting worse.  A Co worker for Mr H_ and an acquaintance of my roommate & myself a Mr T_ M_ (of no relation) had heard of the case and shared some information that he felt should be able to help me.  He informed me that Mr H_ was ambidextrous, and had told him about cashing some checks that he had found, also, in working closely with Mr H_, Mr M_ was able to bring forth copies of Lab Chits with Mr H_’s signature on them that matched the signatures on the forge checks (I had received Photostat copies of the forged checks).  When this was brought to the attention of my attorney, he disregarded the information.  This should have easily demanded at least the consideration of another handwriting analysis on the Navy’s behalf.  Injustice#1 I had asked for my roommate, Mr H_ to be questioned and that didn’t happed.  Even though he was the only other person who could have let anyone in our room and could have said whether or not Mr H_ was in the room on the days I was out of town.  Injustice #2 None of the cashiers at the Army’s PX or the Navy Exchange were ever questioned by the Army or my attorney.  Injustice #3 that ties in the fact that my fingerprints were not on any of the checks and I’m sure one of the cashers would remember anyone who came to cash a check in some gloves in the middle of the summer.  This would be lack of due process.  The check were cashed on day when I was either leaving or returning to the D.C. area on the dates I mentioned earlier.  My attorney didn’t check between the two corresponding dates and exact time to see if I could have been cashing a check and/or on a plane at the same time or even be in the same city to cash the checks.  Injustice #4 The surveillance camera tapes at the cashier’s booth weren’t reviewed.  Injustice #5 and lack of due process.  About a week ½ before the trial I requested three things; 1) Mr B_ presence in the courtroom, 2) Mr H_ presence in the courtroom, and 3) another handwriting specialist to be brought in to do another analysis of; Mr B_, Mr H_ and myself, also to look at the new evidence that had came about.  My attorney then took the liberty, a couple of days later, to tell me that my request couldn’t be granted due to the fact that what I had asked for would cost the Government $3,000 and we were only going to trial for $750.00.  Injustice #6, and no due process.  I felt that that was was quite insensitive considering I’m facing jail time at Quantico Marine Prison, for a crime I’m innocent of and I had a baby on the way.  With the knowledge of me expecting a baby and lack of a strong case, my attorney was very adamant and strongly suggested that I take the plea bargain that had been offered by the prosecutor.  After a few days of contemplating and a friendly nudge.  I signed the plea bargain, out of duress and frustration, that gave me my, “Other Than Honorable in Lieu of Court Martial”, from the U.S. Navy.  In closing, upon reviewing my service record and the case which were overlooked and/or not deemed relevant.  It is my humble, yet insightful opinion that this case was handled ineptly, ineffectively and without consideration of my innocence.  I feel that since the checks were last in my possession, it was taken for granted that I was guilty.  Therefore not taking into consideration key factors: 1) The owner of the checkbook knew I had it, and is like a family member, 2) If anything were to happen with these checks, it stands to reason that I would be the ONLY person held accountable, and 3) My finger prints weren’t on the checks!  I’m insulted a the implication that anyone would think I ‘m that stupid and would want to jeopardize my TSSI Security Clearance, Military Career, Bright Future, and Family’s well being for a mere $750.00.  Especially, when all I had to do was bounce my checks and get into far less trouble.  It has been 10 years that I’ve had to live with this.  It would’ve cost me too much time and money (I didn’t and don’t) have to sue anyone, but now I feel it’s time to mend this open wound and remove this dark cloud from over the heads of my family and myself We lost a lot behind this travesty and although my name hasn’t been cleared, I can at least reap some benefits of having someone realize that I was done wrong.  This ends my soliloquy.”

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	881026 - 890813	COG
	Active:   USN			None

Period of Service Under Review:

Date of Enlistment:  890814		Date of Discharge:  931110

Length of Service (years, months, days):

	Active:    04  00  26
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 (21 months extension)

Education Level:  12			AFQT:  46

Highest Rate:  CTA3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.33 (3)	Behavior:  3.46 (3)		OTA:  3.46

Military Decorations:  None

Unit/Campaign/Service Awards:  LOC, NDSM, OSR(2ND)

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/IN LIEU OF TRIAL BY COURT MARTIAL, authority:  NAVMILPERSMAN, Article 3630650.

Chronological Listing of Significant Service Events:

930701:	Charges preferred to special court-martial for violation of the Uniform Code of Military Justice (UCMJ) Article 121: (6 Specifications), Larceny and Article 121: (12 Specifications), Forgery.

930816:	Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial.  He consulted with counsel and was fully advised of the implications of his request.  The Applicant stated he understood the elements of the offense(s) with which he was charged, and admitted he was guilty of all the charges preferred against him Specifically, he admitted to violating UCMJ, Article: 121 (6 Specifications), Larceny and (12 Specification), Forgery.  The Applicant stated he was completely satisfied with the counsel he had received. The Applicant understood that if discharged under other than honorable conditions, it might deprive him of virtually all veterans' benefits based upon him current enlistment, and that he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received therefrom may have a bearing.  

931110:	The Commanding Officer, exercising GCMCA, approved the request for an administrative separation in lieu of a trial by court-martial, and directed Applicant’s discharge.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19931110 under other than honorable conditions in lieu of a trial by court-martial (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).

Issue 1:  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a Sailor.  The Applicant’s service record is marred by admission to violating UCMJ, Article 121 on several occasions thus substantiating the misconduct.  The Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial.  After consultation with counsel, he admitted guilt to all charges.  The Applicant’s summary of service clearly 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. An upgrade to general (under honorable conditions) would be inappropriate.  Relief denied.

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.   At this time, the Applicant has not provided sufficient verifiable documentation of good character and conduct to mitigate his misconduct while on active duty.  

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 documentation to support any claims of post-service accomplishments or any other evidence related to his discharge 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 5, effective 
05 Mar 93 until 21 Jul 94, Article 3630650, PROCEDURES FOR PROCESSING ENLISTED PERSONNEL FOR SEPARATION IN LIEU OF TRIAL BY COURT‑MARTIAL. 

B.  A punitive bad conduct discharge may be adjudged for violation of the Uniform Code of Military Justice, Article 121, larceny upon conviction by a Special or General Court-Martial, in accordance with the Manual for Courts-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 “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