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

FOR OFFICIAL USE ONLY

 ex-ENS/, USN
Docket No. ND04-01277

Applicant’s Request

The application for discharge review was received on 20040809.  The Applicant requests the Discharge 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 designate a representative on the DD Form 293.  Subsequent to the application, the Applicant obtained representation from the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051006.  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 and reason for discharge shall not change.  The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to commission of a serious offense.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application: 

“16 years of sustained superior performance and dedicated service!  My performance record is justification!”

Additional issues submitted by Applicant’s counsel/representative (American Legion):

“Equity Issue:  Based on our review of evidentiary record and on behalf of this former member, we request that the Board also consider provisions of SECNAVINST 5420.174D, Part V, Paragraph 503, as it pertains to post-service conduct, in assessing the merits of this application.
_______________________________________________________________________

In accordance with Title 32, CFR, Section 724.116 and SECNAVINST 5420.174D, Part I, Paragraph 1.20, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue and following statement in supplement to the Applicant’s petition.

The Board’s attention is invited to Blocks 12, 18 and 25 of DD Form 214.  This former member enlisted on 870113 had multiple reenlistments and extensions before his officer appointment on 001001.  Block 18 should include “Continuous Honorable Active Service from 870113 until 000930” and appropriate changes ought to be made to Block 12.  Block 25 should also include SECNAVINST 1920.6B. 

The SR is incomplete.  In particular, the discharge package is missing.  Review of the available records reflect that this former member had 2 prior honorable enlistments and earned the NAM, JMUA, MUC, GCM (4), NDSM (2), AFEM, SASM, SSDR (3), NMOSR (2), NM, EPSM, KLM and FLOC (3).  He was convicted by General Court Martial on 020724 of VUCMJ, Articles 81,107 121, 134 and sentenced to be dismissed form the Naval Service.  On 021115, the convening authority suspended the sentence for 12 months at which time, unless the suspension is sooner vacated, the sentence will be remitted without further action.  On 030131, he was discharged Under Other Than Honorable Conditions due to misconduct as authorized by SECNAVINST 1920.6B and BUPERS Order 0073 of 030107.

Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded because of his over all service record warrants a higher characterization. He has not submitted additional documentation for consideration.

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised.  To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by Title 10, USC, Section 1553 and set forth in Title 32, CFR, Part 724 and SECNAVINST 5420.174D.

This case is now respectfully submitted for deliberation and disposition.”

Documentation

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

Applicant’s DD Form 214 (Member –1) with Continuation Sheet

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	19861208 – 19870112	COG
	Active:   USN 			19870113 – 19930728	HON
	Active:   USN			19930729 – 19991202	HON
	Active:   USN			19991203 – 20000930	To Accept LDO
									Commission

Period of Service Under Review:

Date of Commission:  20001001		Date of Discharge:  20030131

Length of Service (years, months, days):

	Active:    02  04  00  
	Inactive:  None

Time Lost During This Period (days):  

	Unauthorized absence:	None
	Confinement:			None

Age at Entry:  32

Years Contracted:  3

Education Level:  16	

Highest Rank:  ENS

Final Officer Performance Evaluation Averages:  All officer performance reports were available to t he Board for review.

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Navy and Marine Corps Commendation Medal (3), Navy and Marine Corps Achievement Medal (5), Joint Meritorious Unit Award, Meritorious Unit Commendation, Good Conduct Medal (4), National Defense Service Medal (2), Armed Forces Expeditionary Medal, Southwest Asis Service Medal, Sea Service Deployment Ribbon (3), Navy/Marine Overseas Service Ribbon (2), NATO Medal, Expert Pistol Shot Medal, Kuwait Liberation Medal, Flag Letter of Commendation (3), Enlisted Aviation Warfare Specialist Pin, Enlisted Surface Warfare Specialist Pin.

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  SECNAVINST 1920.6B

Chronological Listing of Significant Service Events: 

001001:	Commission as Limited Duty Officer.

020122:	Charges preferred against the Applicant for violation of UCMJ Articles 81, 92, 107, 108, 121, and 134.

020321:	Investigating Officer’s Report, UCMJ Article 32:  Investigating Officer recommended that the charges preferred against Applicant on 020122, be disposed of by general court-martial.

020410:	Staff Judge Advocate Advice, UCMJ Article 34:  Staff Judge Advocate, Navy Region, Mid-Atlantic, recommended that the charges preferred against Applicant on 020122, be disposed of by general court-martial.

020415:	Charges preferred on 020122, referred for trial by general court-martial this date.

020621:	Applicant submitted a request for resignation from the Naval service.  The Applicant consulted with counsel and was fully advised of the implications of his request and that if accepted, could result in discharge from the Naval service under other than honorable conditions.  The Applicant stated he received a copy of the charges preferred against him and was provided access to the investigative report pertaining to the allegations against him.  The Applicant understood that if discharged under other than honorable conditions it might deprive him of virtually all veterans' benefits based upon his current period of active service 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.  The Applicant voluntarily waived his right to an appearance before a Board of Inquiry, and indicated that he understood he could submit a statement on his behalf.

020622:	Letter from G_ M_, civilian defense counsel, recommending approval of Applicant’s resignation request.

020624:	First Endorsement on Applicant’s resignation request from LT J_ C_, JAGC, USNR, Trial Counsel, recommending approval.

020628:	Second Endorsement on Applicant’s resignation request from Commander, Navy Region, Mid-Atlantic, recommending disapproval.

020708:	Third Endorsement on Applicant’s resignation request from Chief of Naval Personnel, recommending disapproval.

020710:	Commander, Navy Region Mid-Atlantic and the Applicant entered into a pretrial agreement.

020724:	General Court-Martial.  
	Charge I:  violation of the UCMJ, Article 81 (3 Specs):
	Specification 1:  Did, at or near the Hampton Roads area, VA, between on or about July 1999 through July 2000, conspire with AO2 O_, AO2 M_ and AO2 D_ to commit an offense under the UCMJ, to wit:  larceny of and selling without proper authority 20mm brass casings and stainless steel Mark 83 bomb shipping pallets, of a value greater than $100.00, military property, the property of the U.S. Government, and in order to effect the object of the conspiracy the Said ENS L_ (Applicant), did, wrongfully steal and sell the said military property , and other acts.
	Plea:  Guilty, excepting the words “larceny of and,” and the word “steal.”  Of the excepted words, Not Guilty.  Of the Specification as excepted, Guilty.  Finding:  Guilty, excepting the words “larceny of and,” and the word “steal.”  Of the excepted words, Not Guilty.  Of the Specification as excepted, Guilty.  
	Specification 2:  Did, at or near the Hampton Roads area, VA, between on or about August 1998 through July 2000, conspire with AO2 A_ M_ and AO2 S_ O_, and other persons, to commit an offense under the UCMJ, to wit:  larceny of and selling without proper authority property obtained from the Defense Reutilization and Management Office, of a value greater than $100.00, military property, the property of the U.S. Government, and in order to effect the object of the conspiracy the Said ENS L_ (Applicant), did, make trips to the Defense Reutilization and Management Office and sign for and steal property, and other acts.  Plea:  Not Guilty.  Finding:  Not Guilty.
	Specification 3:  Did, at or near the Hampton Roads area, VA, between on or about August 1998 through July 2000, conspire with AO2 S_ O_, AO2 M_ T_, and AO3 D_ R_, and other persons, to commit an offense under the UCMJ, to wit:  wrongfully and without authority wearing unauthorized insignias, decorations, badges, ribbons, and devices, and in order to effect the object of the conspiracy the Said ENS L_ (Applicant), did falsely alter members service records to give the appearance that the service member was entitled to the insignia, decoration, badge, ribbon, or device, and other acts.  Plea:  Not Guilty.  Finding:  Not Guilty.
	Charge II:  violation of the UCMJ, Article 92.  
Specification:  Did, on divers occasions, between on or about June 1999 through on or about June 2000, at or near the Hampton Roads Area, Virginia, violate a lawful general regulation, to wit:  SECNAV Instruction 1610.2, dated 1 October 1997, by wrongfully hazing AOAN A_ S. Y_, U.S. Navy, by tying him up and hanging him from a tree and other acts.  Plea:  Not Guilty.  Finding:  Not Guilty.
Charge III:  violation of the UCMJ, Article 107 (15 Specs):
Specification 1:  Did, at or near Pensacola, FL, on or about 7 Nov 2000, with intent to deceive, make to LT A_ W. P_, U.S. Naval Reserve (TAR), an official statement, to wit:  “I never had knowledge or participated in falsifying awards or any other documents,” or words to that effect, which statement was totally false, and was then known by the said ENS K_ L_ (Applicant), U.S. Navy, to be so false.  Plea:  Guilty.  Finding:  Guilty.
Specification 2:  Did, at or near the Hampton Roads area, VA, between on or about Sept 2000 through on or about Nov 2000, with the intent to deceive, make to Personnel Support Detachment, Oceana, an official statement, to wit:  Represented that AO2 S_ O_’s Joint Service Achievement Medal Certificate was valid, or words to that effect, which statement was totally false, and was then known by the said ENS K_ L_ (Applicant), U.S. Navy, to be so false.  Plea:  Not Guilty.  Finding:  Not Guilty.
Specification 3:  Did, at or near the Hampton Roads area, VA, between on or about Sept 2000 through on or about Nov 2000, with the intent to deceive, make to Personnel Support Detachment, Oceana, an official statement, to wit:  Represented that AO2 S_ O_’s Enlisted Aviation Warfare Specialist designation Certificate was valid, or words to that effect, which statement was totally false, and was then known by the said Ens K_ L_ (Applicant), U.S. Navy, to be so false.  Plea:  Not Guilty.  Finding:  Not Guilty.
Specification 4:  Did, at or near the Hampton Roads area, VA, between on or about Sept 2000 through on or about Nov 2000, with the intent to deceive, make to Personnel Support Detachment, Oceana, an official statement, to wit:  Represented that AO2 S_ O_’s Navy and Marine Corps Achievement Medal Certificate was valid, or words to that effect, which statement was totally false, and was then known by the said ENS K_ L_ (Applicant), U.S. Navy, to be so false.  Plea:  Not Guilty.  Finding:  Not Guilty.
Specification 5:  Did, at or near the Hampton Roads area, VA, between on or about Sept 2000 through on or about Nov 2000, with the intent to deceive, make to Personnel Support Detachment, Oceana, an official statement, to wit:  Represented that AO2 M_ T_’s Navy and Marine Corps Achievement Medal Certificate was valid, or words to that effect, which statement was totally false, and was then known by the said ENS K_ L_ (Applicant), U.S. Navy, to be so false.  Plea:  Not Guilty.  Finding:  Not Guilty.
Specification 6:  Did, at or near the Hampton Roads area, VA, between on or about Sept 2000 through on or about Nov 2000, with the intent to deceive, make to Personnel Support Detachment, Oceana, an official statement, to wit:  Represented that AO2 C_ J_’s Enlisted Aviation Warfare Specialist designation Certificate was valid, or words to that effect, which statement was totally false, and was then known by the said ENS K_ L_ (Applicant), U.S. Navy, to be so false.  Plea:  Not Guilty.  Finding:  Not Guilty.
Specification 7:  Did, at or near the Hampton Roads area, VA, between on or about Sept 2000 through on or about Nov 2000, with the intent to deceive, make to Personnel Support Detachment, Oceana, an official statement, to wit:  Represented that AO2 B_ D_’s Enlisted Aviation Warfare Specialist designation Certificate was valid, or words to that effect, which statement was totally false, and was then known by the said ENS K_ L_ (Applicant), U.S. Navy, to be so false.  Plea:  Not Guilty.  Finding:  Not Guilty.
Specification 8:  Did, at or near the Hampton Roads area, VA, between on or about Sept 2000 through on or about Nov 2000, with the intent to deceive, make to Personnel Support Detachment, Oceana, an official statement, to wit:  Represented that AO2 B_ D_’s joint Service Achievement Medal Certificate was valid, or words to that effect, which statement was totally false, and was then known by the said ENS K_ L_ (Applicant), U.S. Navy, to be so false.  Plea:  Not Guilty.  Finding:  Not Guilty.
Specification 9:  Did, at or near the Hampton Roads area, VA, between on or about Sept 2000 through on or about Nov 2000, with the intent to deceive, make to Personnel Support Detachment, Oceana, an official statement, to wit:  Represented that AO2 B_ D_’s Navy and Marine Corps Commendation Medal Certificate was valid, or words to that effect, which statement was totally false, and was then known by the said ENS K_ L_ (Applicant), U.S. Navy, to be so false.  Plea:  Not Guilty.  Finding:  Not Guilty.
Specification 10:  Did, at or near the Hampton Roads area, VA, between on or about Sept 2000 through on or about Nov 2000, with the intent to deceive, make to Personnel Support Detachment, Oceana, an official statement, to wit:  Represented that AO3 D_ R_’s Joint Service Achievement Medal Certificate was valid, or words to that effect, which statement was totally false, and was then known by the said ENS K_ L_ (Applicant), U.S. Navy, to be so false.  Plea:  Not Guilty.  Finding:  Not Guilty.
Specification 11:  Did, at or near the Hampton Roads area, VA, between on or about Sept 2000 through on or about Nov 2000, with the intent to deceive, make to Personnel Support Detachment, Oceana, an official statement, to wit:  Represented that AO3 D_ R_’s Navy and Marine Corps Achievement Medal Certificate was valid, or words to that effect, which statement was totally false, and was then known by the said ENS K_ L_ (Applicant), U.S. Navy, to be so false.  Plea:  Not Guilty.  Finding:  Not Guilty.
Specification 12:  Did, at or near the Hampton Roads area, VA, between on or about Sept 2000 through on or about Nov 2000, with the intent to deceive, make to Personnel Support Detachment, Oceana, an official statement, to wit:  Represented that AO3 D_ R_’s navy and Marine Corps Achievement Medal Certificate, Gold Star in Lieu of Second Award, was valid, or words to that effect, which statement was totally false, and was then known by the said ENS K_ L_ (Applicant), U.S. Navy, to be so false.  Plea:  Not Guilty.  Finding:  Not Guilty.
Specification 13:  Did, at or near the Hampton Roads area, VA, between on or about Sept 2000 through on or about Nov 2000, with the intent to deceive, make to Personnel Support Detachment, Oceana, an official statement, to wit:  Represented that AO2 P_ M_’s Joint Service Achievement Medal Certificate was valid, or words to that effect, which statement was totally false, and was then known by the said ENS K_ L_ (Applicant), U.S. Navy, to be so false.  Plea:  Not Guilty.  Finding:  Not Guilty.
Specification 14:  Did, at or near the Hampton Roads area, VA, between on or about Sept 2000 through on or about Nov 2000, with the intent to deceive, make to Personnel Support Detachment, Oceana, an official statement, to wit:  Represented that AO2 T_ W_’s Joint Service Achievement Medal Certificate was valid, or words to that effect, which statement was totally false, and was then known by the said ENS K_ L_ (Applicant), U.S. Navy, to be so false.  Plea:  Not Guilty.  Finding:  Not Guilty.
Specification 15:  Did, at or near the Hampton Roads area, VA, between on or about Sept 2000 through on or about Nov 2000, with the intent to deceive, make to Personnel Support Detachment, Oceana, an official statement, to wit:  Represented that AO2 T_ W_’s Navy and Marine Corps Achievement Medal  Certificate was valid, or words to that effect, which statement was totally false, and was then known by the said ENS K_ L_ (Applicant), U.S. Navy, to be so false.  Plea:  Not Guilty.  Finding:  Not Guilty.
Charge IV:  violation of the UCMJ, Article 108:
Specification:  Did, at or near the Hampton Roads Area, VA, between on or about July 1999 through July 2000, without proper authority, sell to USA Recycling Center, 20mm brass casings and stainless stell Mark 83 bomb shipping pallets, of a value greater than $100.00, military property, property of the United States Government.  Plea:  Guilty.  Finding:  Guilty.
Charge V:  violation of the UCMJ, Article 121 (2 Specs):
Specification 1:  Did, on board Naval Air Station, Oceana, Virginia Beach, VA, between on or about July 1999 through July 2000, steal 20mm brass casings and stainless steel Mark 83 bomb shipping pallets, of a value greater than $100.00, military property, property of the United States Government.  Plea:  Guilty, excepting the word “steal,” and substituting therefore the words “wrongfully appropriate.”  To the excepted words, Not Guilty.  To the specification, as excepted and substituted, Guilty.  Finding:  Guilty, excepting the word “steal,” and substituting therefore the words “wrongfully appropriate.”  To the excepted words, Not Guilty.  To the specification, as excepted and substituted, Guilty.
Specification 2:  Did, at or near the Hampton Roads area, Virginia, on divers occasions, between on or about Aug 1998 through Jul 2000, steal laptop computers, among other items, from the Defense Reutilization and Management Officer, of a value greater than $100.00, military oroperty, property of the U.S. Government.  Plea:  Not Guilty.  Finding:  Not Guilty.
Charge VI:  violation of the UCMJ, Article 134 (15 Specs)
Specification 1:  Did, onboard Naval Air Station, Oceana, Virginia Beach, VA, between on or about March 2000 and July 2000, wrongfully solicit AO2 R_ J. V_, U.S. Navy, to wrongfully and without authority wear upon his uniform a Navy Achievement Medal.  Plea:  Not Guilty.  Finding:  Not Guilty.  
Specification 2:  Did, onboard Naval Air Station, Oceana, Virginia Beach, VA, between on or about Sept 1999 and Dec 1999, wrongfully solicit AO2 W_ L. D_, Jr., to wrongfully and without authority wear upon his uniform an air warfare device, a surface warfare device, or any other insignia, decoration, badge, or ribbon of his choosing.  Plea:  Not Guilty.  Finding:  Not Guilty.  
Specification 3:  Did, at or near the Hampton Roads area, VA, between on or about Sep 2000 through on or about Nov 2000, aide, abet, and assist AO2 C_ J_, U.S. Navy, to wrongfully and without authority wear upon his uniform the Air Warfare designation.  Plea:  Not Guilty.  Finding:  Not Guilty.  
Specification 4:  Did, at or near the Hampton Roads Area, VA, between on or about Sep 2000 through on or about Nov 2000, knowingly and willfully made a service record document, to wit:  Enlisted Aviation Warfare Specialist designation Certificate for the service record of AO2 S_ O_, knowing the same to contain materially false, fictitious, or fraudulent statements or entries, in violation of 18 U.S.C. § 1001.  Plea:  Guilty.  Finding:  Guilty.
Specification 5:  Did, at or near the Hampton Roads Area, VA, between on or about Sep 2000 through on or about Nov 2000, knowingly and willfully made a service record document, to wit:  Joint Service Achievement Medal Certificate for the service record of AO2 S_ O_, knowing the same to contain materially false, fictitious, or fraudulent statements or entries, in violation of 18 U.S.C. § 1001.  Plea:  Not Guilty.  Finding:  Dismissed.
Specification 6:  Did, at or near the Hampton Roads Area, VA, between on or about Sep 2000 through on or about Nov 2000, knowingly and willfully made a service record document, to wit:  Navy and Marine Corps Achievement Medal Certificate for the service record of AO2 S_ O_, knowing the same to contain materially false, fictitious, or fraudulent statements or entries, in violation of 18 U.S.C. § 1001.  Plea:  Not Guilty.  Finding:  Dismissed.
Specification 7:  Did, at or near the Hampton Roads Area, VA, between on or about Sep 2000 through on or about Nov 2000, knowingly and willfully made a service record document, to wit:  Navy and Marine Corps Achievement Medal Certificate for the service record of AO2 M_ T_, knowing the same to contain materially false, fictitious, or fraudulent statements or entries, in violation of 18 U.S.C. § 1001.  Plea:  Not Guilty.  Finding:  Dismissed.
Specification 8:  Did, at or near the Hampton Roads Area, VA, between on or about Sep 2000 through on or about Nov 2000, knowingly and willfully made a service record document, to wit:  Enlisted Aviation Warfare Specialist designation Certificate for the service record of AO2 C_ J_, knowing the same to contain materially false, fictitious, or fraudulent statements or entries, in violation of 18 U.S.C. § 1001.  Plea:  Not Guilty.  Finding:  Dismissed.
Specification 9:  Did, at or near the Hampton Roads Area, VA, between on or about Sep 2000 through on or about Nov 2000, knowingly and willfully made a service record document, to wit:  Enlisted Aviation Warfare Specialist designation Certificate for the service record of AO2 B_ D_, knowing the same to contain materially false, fictitious, or fraudulent statements or entries, in violation of 18 U.S.C. § 1001.  Plea:  Not Guilty.  Finding:  Not Guilty.
Specification 10:  Did, at or near the Hampton Roads Area, VA, between on or about May 2000 through on or about Jul 2000, knowingly and willfully made a service record document, to wit:  Joint Service Achievement Medal Certificate for the service record of AO2 B_ D_, knowing the same to contain materially false, fictitious, or fraudulent statements or entries, in violation of 18 U.S.C. § 1001.  Plea:  Not Guilty.  Finding:  Not Guilty.
Specification 11:  Did, at or near the Hampton Roads Area, VA, between on or about May 2000 through on or about Jul 2000, knowingly and willfully made a service record document, to wit:  Navy and Marine Corps Achievement Medal Certificate for the service record of AO2 B_ D_, knowing the same to contain materially false, fictitious, or fraudulent statements or entries, in violation of 18 U.S.C. § 1001.  Plea:  Not Guilty.  Finding:  Not Guilty
Specification 12:  Did, at or near the Hampton Roads Area, VA, between on or about Sep 2000 through on or about Nov 2000, knowingly and willfully made a service record document, to wit:  Joint Service Achievement Medal Certificate for the service record of AO3 D_ R_, knowing the same to contain materially false, fictitious, or fraudulent statements or entries, in violation of 18 U.S.C. § 1001.  Plea:  Not Guilty.  Finding:  Dismissed.
Specification 13:  Did, at or near the Hampton Roads Area, VA, between on or about Sep 2000 through on or about Nov 2000, knowingly and willfully made a service record document, to wit:  Navy and Marine Corps Achievement Medal Certificate for the service record of AO3 D_ R_, knowing the same to contain materially false, fictitious, or fraudulent statements or entries, in violation of 18 U.S.C. § 1001.  Plea:  Not Guilty.  Finding:  Dismissed.
Specification 14:  Did, at or near the Hampton Roads Area, VA, between on or about Sep 2000 through on or about Nov 2000, knowingly and willfully made a service record document, to wit:  Navy and Marine Corps Achievement Medal Certificate, Gold Star in Lieu of Second Award, for the service record of AO3 D_ R_, knowing the same to contain materially false, fictitious, or fraudulent statements or entries, in violation of 18 U.S.C. § 1001.  Plea:  Not Guilty.  Finding:  Dismissed.
Specification 15:  Did, at or near the Hampton Roads Area, VA, between on or about Sep 2000 through on or about Nov 2000, knowingly and willfully made a service record document, to wit:  Joint Service Achievement Medal Certificate for the service record of AO2 P_ M_, knowing the same to contain materially false, fictitious, or fraudulent statements or entries, in violation of 18 U.S.C. § 1001.  Plea:  Not Guilty.  Finding:  Not Guilty.
	Sentence: To be dismissed from the Naval Service.

020820:	Applicant submitted a request for resignation from the Naval service.  The Applicant consulted with counsel and was fully advised of the implications of his request and that if accepted, could result in discharge from the Naval service under other than honorable conditions.  The Applicant stated that he was convicted by general court-martial of several offenses and that by the terms of his pretrial agreement, he is obligated to submit this request.  The Applicant understood that if discharged under other than honorable conditions it might deprive him of virtually all veterans' benefits based upon his current period of active service 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.  The Applicant voluntarily waived his right to an appearance before a Board of Inquiry, and indicated that he understood he could submit a statement on his behalf.

021108:	Clemency request:  Applicant, through civilian defense counsel, requested clemency from Commander, Navy Region, Mid-Atlantic.  Applicant requested to remain on active duty to retain medical benefits for his ill son.

021115:	CA Action:  Commander, Navy Region Mid-Atlantic, in accordance with the terms of the pretrial agreement, approved the sentence as adjudged, but suspended execution of the sentence for a period of twelve months at which time, unless the suspension is sooner vacated, the sentence will be remitted without further action.

030131:	DD Form 214 issued indicated Applicant resigned and with a character of service as Under Other Than Honorable Conditions, by reason of misconduct due to commission of serious offense.

040625:	NMCCA:  The findings of guilty and sentence, as approved on review, 
are affirmed.

Service Record contains a partial Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant resigned his commission and was discharged on 20030131 by reason of misconduct due to commission of a military or civilian offense which could be punished by confinement of 6 months or more (A) with a service characterization of under other than honorable conditions.  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).  The Board presumed regularity in the conduct of governmental affairs (D).

Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question.  No such impropriety or inequity is evident during the Applicant’s enlistment.  Applicable regulations require that a member’s characterization of service be based upon the member’s total performance of duty and conduct during the current period of active service.  Furthermore, there are circumstances where conduct or performance of duty reflected by a single adverse incident may form the basis of characterization for a member’s overall service.  The incident need not result in formal punishment to be properly used to characterize a member’s service.  An under other than honorable conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by a general court-martial conviction for violations of UCMJ Articles 81, conspiracy, 107, false official statement, 108, wrongful disposition of military property of the United States, 121, wrongful appropriation, and 134, an assimilative crimes act violation of 18 U.S.C. §1001.  Under applicable statutes, a violation of UCMJ Article 107 is punishable by confinement of 6 months or more.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his commission in the United State Navy.  Such conduct falls far short of that expected of an officer of the U.S. military and does not meet the requirements for an upgrade of his characterization of service.  Relief is not warranted.

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 Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided any post-service documentation for the Board to consider.  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 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.  Secretary of the Navy Instruction 1920.6B (ADMINISTRATIVE SEPARATION OF OFFICERS), effective 13 December 1999 until Present establishes policies, standards and procedures for the administrative separation of Navy and Marine Corps officers from the naval service in accordance with Title 10, United States Code and DoD Directive 1332.30 of 14 March 1997.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.

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 “http://Boards.law.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:

		Secretary of the Navy Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023