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

ex-SHSR, USN
Docket No. ND03-01324

Applicant’s Request

The application for discharge review was received on 20030806.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  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/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “TO WHOM IT MAY CONCERN

I WOULD LIKE TO EXPLAIN MY STORY FIRST THEN LET YOU DETERMIN MY OUT COME, AND I AM REQUESTING THAT MY OTH DISCHARGE BE UPGRADED TO AN HONORABLE DISCHARGE

I KNOW I SIGNED A PAPER WHILE I WAS IN A SCHOOL THAT STATED THAT I AM RESPONSIBLE FOR ANY MISSING MONEY ON ANY OF THE MACHINE’S ON THE SHIP.  WELL HERE ‘S WERE EVERYTHING GOES WRONG.
I WENT ON VACATION AND WHEN I GOT BACK FROM MY VACATION.  WHICH WAS RIGHT ABOUT, A WEEK BEFORE WE WERE TO GO ON OUR SIX MONTH CRUISE TOUR.  I WAS INFORMED BY MY PETTY OFFICER ABOUT THIS MATTER AND AFTER SPEAKING TO HIM I WAS CALLED INTO THE DISPERCEASING OFFICE I WAS TOLD THAT $365.55 DOLLARS IN COINS WERE MISSING OUT OF THE SODA MECHINE.  THE MISSING MONEY MUST OF HAPPENED DURING THE WEEKEND, BUT THAT WAS NOT THE EMBRASSING PART I WAS ASSURED BY THE PETTY OFFICER AND DISPERCEASING OFFICE THAT SINCE THIS MUST OF HAPPENED ON THE WEEKEND AND THAT IT WILL REMAIN BETWEEN JUST THE THREE OF US.  THEY BOTH STATED TO ME THAT AS LONG AS I PAID IT BACK IT WOULD BE CLEARED.  I THOUGHT I WAS DOING THE RIGHT THING EVEN THOUGH I DIDN’T SAY A WORD AND WENT HOME AND EXPLAINED THE SISUTION TO MY WIFE AND ASKED FOR HER HELP AND EVEN THOUGH SHE SAID I DON’T THINK YOU SHOULD BECAUSE IT’S JUST SHOWING THEM THAT YOU DID DO IT.”  FINALLY SHE SAID OKAY I’D HELP YOU.  I PAID $215.55 AND MY WIFE WROTE OVER HER ALLOTMENT CHECK TO THE USS PETERSON WHICH WAS IN THE SUM OF $150.00.

I WANT TO MAKE SOMETHING CLEAR!

I PAID $365.55 NOT BECAUSE I WAS GUILTY, BUT BECAUSE ONCE I SIGNED THAT PAPER I KNEW I WAS RESPONSIBLE FOR ANY MISSING MONEY FROM MY MACHINES.

WELL AFTER THE $365.55 WAS PAID OFF ONE OF THESE TWO MEN WENT TO THE MILITARY POLICE AND MY CO AND I WENT UP TO CAPTAIN’S MASS I WAS SENTENCED TO SIX MONTHS PROBATION AND EXTRA DUTY.  TWO TO THREE WEEKS BEFORE PULLING BACK HOME EVERYONE KNEW I WAS ON PROBATION AND COULDN’T GET OFF THE SHIP SO THAT MENT NO ONE WAS ON THE SHIP EXCEPT FOR THE ONE’S THAT HAD TO BE ON THE SHIP.  WELL SECOND PETTY OFFICER R_ PLACED HIS WALLET ON MY RACK, BUT WHAT I DON’T UNDERSTAND IS WHY? IF HIS RACK WAS ON THE TOP AND MINE WAS ON THE BOTTOM AND THERE WAS FOUR OTHER EMPTY RACKS WHY PUT IT JUST ON MY RACK?
P02 R_ ASKED ME IF I HAD SEEN HIS WALLET AND ME KNOWING WHAT HE JUST DID I WENT ALONG WITH HIS GAME AND STARTED PLAYING STUPID AND TOLD HIM NO AND TO GO ON AHEAD TO HIS POST AND ONCE I FIND IT I’LL BRING IT TO HIM.  I TOOK A SNEAK PEAK IN THE WALLET TO SEE IF HE HAD ANY UGLY GIRLS PICTURE IN IT AND NOTICED HE HAD A $20.00 DOLLAR BILL AND A CONDOM.  BEFORE I GAVE HIM THE WALLET I ASKED HIM WHERE DID HE LEAVE IT?

PO2 R_ STATED “I LEFT IT ON YOUR RACK UNDER YOUR PILLOW?

THAT’S WHEN I TOLD HIM HE WAS LYING BECAUSE HE LEFT IT RIGHT ON THE MIDDLE OF MY RACK AND I GAVE HIM BACK HIS WALLET.  ABOUT FIVE MINUTES LATER THE MILITARY POLICE WERE LOOKING FOR ME TELLING ME THAT I STOLE SECOND PETTY OFFICER RING’S WALLET AND I WAS SENT BACK TO CAPTAIN’S MASS.

WHAT I DON’T UNDERSTAND IS WHY UNDER MY PILLOW?

THE CO FELT THAT I WAS SET-UP, BUT BECAUSE I DECIDED TO PLAY A STUPID JOKE AND NOT RETURN THE WALLET BACK RIGHT THEN AND THERE I WAS TOLD THAT SINCE I BROKE MY PROBATION I WILL BE DISCHARGED FROM UNITED STATES NAVY UNDER PENIL CODE #131 AND RECEIVED AN 0TH.

NOW THAT YOU HAVE HEARD MY SIDE OF THE STORY I WISH YOU WOULD UPGRADE MY 0TH TO A GENERAL OR HONORABLE DISCHARGE.
IF YOU LOOK AT MY MILITARY JACKET YOU WILL NOTICE THAT I HAVE NEVER GONE AWOL OR MISSED ANY DAYS AND OTHER THAN THIS INSIDENT I HAVEN’T HAD ANY OTHER PROBLEMS, I ALWAYS DID WHAT I WAS TOLD AND THEN MORE.

THANK YOU FOR YOUR TIME AND COOPERATION,

D_ R_ JR. (Applicant)”

Documentation

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

Letter from Applicant, undated
Letter to Applicant from Vice President, MCE, dated January 23, 2002
Job verification, dated February 24, 2003 (2)
Certificate of completion, dated October 7, 1999
Certificate of completion, undated
Certificate of completion, dated June 24, 1999 (2)
Certification certificate, issued February 3, 1999 (2)
Applicant’s DD Form 214 (Member 1 and 4 (2))
One hundred and sixty-four pages from Applicant’s service record
Letter from Applicant, dated February 2, 2004
Employee of the Month certificate, dated January 30, 2003

PART II - SUMMARY OF SERVICE

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

	Inactive: None
	Active:   None

Period of Service Under Review:

Date of Enlistment:  950327		Date of Discharge:  971231

Length of Service (years, months, days):

	Active:    02  06  19
	Inactive:  None

Age at Entry:  23			Years Contracted:  8

Education Level:  12			AFQT:  32

Highest Rate:  SHSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.67 (3)	Behavior:  2.67 (3)		OTA:  2.83

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SASM with 1 Star, NER, NATO, SSDR, Letter of Commendation

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

970806:	NJP.  No further information found in service record.  Extracted from P601-7R, dated 971202.

971202:	Vacate suspended reduction to SHSA awarded at CO’s NJP dated 970806 due to continued misconduct.

971202:	NJP for violation of UCMJ, Article 121: Larceny of $51.25, property of SH2 on 971127.
	Award: Restriction and extra duty for 30 days, reduction to SHSR.  No indication of appeal in the record.

971205:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

971205:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

971231:	DD Form 214: Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct, authority:  NAVMILPERSMAN, Article 3630600.

Parts of Applicant’s discharge package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19971231 under other than honorable conditions for misconduct due to a pattern of misconduct (A).  In the absence of a discharge package, the Board presumed regularity in the conduct of governmental affairs (B) and, after a thorough review of the records, supporting documents, facts, and circumstances unique to this case, found that the discharge was proper and equitable (C and D).

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 award of non judicial punishment (NJP) on two separate occasions thus substantiating the misconduct.  The Applicant’s allegation, that he did not knowingly violate the UCMJ, does not refute the presumption of regularity in this case.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  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 14, effective 03 Oct 96 until 11 Dec 97), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – A PATTERN OF MISCONDUCT. 

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