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

  ex-SHSR, USN  
Docket No. ND05-00126

Applicant’s Request

The application for discharge review was received on 20041029.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requested a personal appearance review before a traveling panel closest to Bella Vista, AK.  The Applicant did not list a representative on DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington National Capital Region.  The Applicant was also advised that the Board first conducts a documentary review prior to any personal appearance hearing.  Subsequent to the application the Applicant obtained representation by the Veterans of Foreign Wars.

Decision

A documentary review was conducted in Washington, D.C. on 20050316.  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 1910-140 (formerly 3630600).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I thank the board for looking at my application for discharge upgrade.  I was discharged about 2 yrs ago.  At the time everything went fast and I did not realize how the Other than Honorable discharge would effect my life.  Sometime around August 2002 that I was being charged with theft from Supply dept of cigarettes.  When the legal dept on my ship told me if I went to a summary court-martial an defend my self against this crime the punishment would be less harsh an I would not be discharged.  At the summary court-martial I represented my self to prove my innocence.  I felt I did a very good job.  I was found guilty spent 30 days in the brig.  I was also reduced in rank from E-4 to E-1.  Then when I was released from the brig my division put me in for a administrative separation.  I was represented at this hearing by a good naval lawyer.  I was discharged with a Other than Honorable by a vote 2-1.  I know I committed a similar crime in July 00 which I accepted full responsibility for.  I did not commit this second crime.  I believe I was punished 3 times for this crime.  Once when they stripped my rank.  Twice when I was confined to the brig.  Third time when I was discharged.  I would like to have by discharge upgrade so I could get the benefits I contributed to and perhaps re-enlist in the U.S. Navy and serve my country again.  I enjoyed my time in the military and loved serving my country. ”

Additional issues submitted by Applicant’s representative (VETERANS OF FOREIGN WARS):

2.  “Propriety and Equity Issue(s):  The applicant’s service was generally honorable and should be characterized as such.

Statement:  In accordance with 32 CFR § 724, and SECNAVINST 5420.174D,  the Veterans of Foreign Wars submits to the Naval Discharge Review Board (NDRB) the above issue and following statement in supplement to the Applicant’s petition.

The applicant was a capable Petty Officer who honorably served aboard the USS George Washington prior to his convictions by NJP for a violation of Article 121 (larceny) and by Special Court Martial for violation of Article 121 (larceny) and Article 107 (making a false statement) of the UCMJ.  The applicant feels that his OTH discharge is inequitable in the light of his generally honorable service and should be upgraded.

The Veterans of Foreign Wars’ 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 § 1553, and set forth in 32 CFR § 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:

Enlisted Evaluation and Counseling Reporting Record (3 pages)
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	990319 - 990811	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  990812		Date of Discharge:  021220

Length of Service (years, months, days):

	Active:    03  04  09
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  35

Highest Rate:  SH3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (2)		Behavior:  3.00 (2)		OTA:  3.07

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SSDR(2), AFEM(2), MUC, NER

Days of Unauthorized Absence:  24

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

Chronological Listing of Significant Service Events:

000818:	NJP for violation of UCMJ, Article 81:  Conspiracy to commit larceny of a Minolta Vectis 200 APS kit 2208 camera, violation of UCMJ, Article 121: Larceny of a Minolta Vectis 200 APS kit 2208 camera.
	Award: Forfeiture of $325 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1 (RIR to E-1 Suspended for 6 months). No indication of appeal in the record.

000818:	Retention Warning:  Advised of deficiency (Violation of the UCMJ, Article 81- Conspiracy to purchase a camera from the ship’s store for $100.00 vice the original price of $324.00 on or about 00JUL25; and Article 121 – Larceny on or about 00JUL25), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

020923:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 81:
	Specification: Conspiracy to commit larceny of government property on or about June 2002.
 	Charge II: violation of the UCMJ, Article 107:
	Specification: False official statement on or about 7 September 2002, to Master-at-Arms First Class Laurie Arden, U.S. Navy, to wit: “I do not know what you are talking about.  I don’t know nothing.”
Charge III: violation of the UCMJ, Article 121:
	Specification: Larceny of several cartons of cigarettes, on or about June 2002 to on or about August 2002, military property, of some value.
	Finding: to Charge I, II, III, and the specifications thereunder, guilty.
	Sentence: Confinement for 30 days, forfeiture of $736.00 pay per month for 1 month, reduced to E-1.
	CA action 021028:  Sentence approved and ordered executed except for that portion of the punishment adjudging forfeiture of $736.00 which is suspended for 3 months.

021005:	SJA review of trial by summary court-martial found sentence was legal and corrective action is not required.

021109:	USS GEORGE WASHINGTON notified Applicant of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and the commission of a serious offense.

021109:	Applicant advised of rights and having consulted with counsel certified under UCMJ, Article 27(b), elected to appear before an Administrative Discharge Board.

021118:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to a pattern of misconduct, found that the Applicant had committed misconduct due to the commission of a serious offense, that the misconduct warranted separation, and by a vote 2 to 1 recommended discharge under other than honorable conditions.

021216:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and the commission of a serious offense.

021216:	NJP for violation of UCMJ, Article 128:  Assault consummated by a battery; violation of UCMJ, Article 134: Obstructing justice.
	Award: confinement on bread and water for 3 days.

021219:	COMCRUDESGRU TWO directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20021220 under other than honorable conditions for misconduct due to a pattern of misconduct (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 stated that his command told him that he would not be discharged after the summary court-martial.  There is no evidence in the record that the command made such a statement to the fact.  Additionally, the Applicant stated that he was punished three times for the same offense by having his rank stripped, serving brig time and being discharged.  The Applicant’s reduction from E-4 to E-1, serving of brig time, and being discharged from the service are directly linked to the violations of UCMJ Articles 81, 107, and 121 at the Applicants summary court-martial.  Relief denied.

Issue 2:  A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a sailor.  The Applicant’s service was marred by award of nonjudicial punishment (NJP) and a summary court-martial for violations of Articles 81 (Conspiracy to commit larceny), Article 107 (False official statement), Article 121 (Larceny), Article 128 (Assault consummated by a battery), and Article 134 (Obstructing justice).  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service.  The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, a procedural error or inequity must have existed during the period of enlistment in question.  No such error or inequity is evident during the Applicant’s enlistment.  Relief denied.

The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board.  There is no requirement or law that grants recharacterization on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy.  Reenlistment policy of the naval service is promulgated by the Commander, Navy Recruiting Command, 5722 Integrity Drive, Bldg 784, Millington, TN 38054.  Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment.  A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  Relief, is therefore, 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.  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), re-issued October 2002, effective 22 Aug 2002 until Present, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

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

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

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