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

FOR OFFICIAL USE ONLY

 ex-HT2, USN
Docket No. ND05-00648

Applicant’s Request

The application for discharge review was received on 20050302.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions).  The Applicant’s application was accepted for a documentary record discharge review.  The Applicant designated civilian counsel as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050831.  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: 

“The record shows I was charged with the following violations of the UCMJ, Article 81, Article 107, Article 108 and Article 121.  The characterization of discharge received unwarranted based upon my entire service record.”

Issues submitted by Applicant’s counsel/representative (Civilian Counsel):

“Whether the characterization of discharge was warranted given the circumstances of the offense charge and considering the entire service member’s exemplary record during the period of his enlistment.”

“Dear Sir:

This application is being filed to request that the military discharge of HT2 M_ S. M_ be upgraded to a General under Honorable Conditions.

Mr M_ entered the U.S. Navy in 1994.  He completed the most rigorous training program in the Navy (SEAL training) and his primary specialty was HT9545 Navy Law Enforcement Specialist.

The offense which led to his discharge was one in which the body armor vests appeared to be abandoned property set out next to a trash dumpster.  HT2 M_ and a fellow sailor retrieved these vests and sold them to a pawn shop dealer.

Mr. M_ was charged with violations of the UCMJ, Article 81, Article 107, Article 108 and Article 121.  Mr M_, through me as his attorney, agreed to a Stipulation of Fact and the Navy agreed to withdraw charges from the Special Court Martial and to refer the charges for non-judicial punishment.  The proceedings ended with HT2 M_ receiving an Other Than Honorable discharge.

During his almost 8 ½ years of active duty, Mr M_ had an outstanding performance record with the Navy other than this one indiscretion.  As this Board can see from his DD214, he had several commendations of his service.  He entered on active duty as a young man, 18 years of age.  Until this incident he performed well in his duties to his Country and the Navy.

Upon being discharged, Mr. M_ continued to live and work in the Hampton Roads area as a construction/renovation sub-contractor.  Currently, he is working as a bodyguard for U.S. Diplomats in Iraq for the Blackwater Company.  He is helping, obviously, to perform a needed service to our country’s representatives in a very dangerous situation.

The purpose of making this request for an upgrade in Mr. M_ discharge status is to enable him to more easily obtain security clearances as may be needed for the current employment in Iraq.  This would make him available for other security and bodyguard assignments which he may not now accept due to the Navy records on his discharge.  His value to America’s diplomatic service would be even more valuable.

Mr. M_ has been punished for his earlier actions and has been in the process of re-establishing his reputation and his honor.

It is respectfully requested that this Board consider all the facts in this matter, including Mr. M_ effort to rebound from this one mark against his record.”

Very truly yours,

(signed)
D_ W. M_” [Civilian Counsel]

Documentation

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

Cover Letter from D_ W. M_, Attorney at Law, dtd August 8, 2005
Employment Reference Letter from R_ F. W_, undated
Employment Reference Letter from C_ D_, President CDM Development, dtd February 17, 2004
Letter from Applicant dtd March 30, 2005
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	19940707 – 19941106		COG
	Active:   USN 			19941107 – 19981217		HON

Period of Service Under Review:

Date of Enlistment:  19981218		Date of Discharge:  20030321

Length of Service (years, months, days):

	Active:    04  03  04
	Inactive:  None

Time Lost During This Period (days):  

	Unauthorized absence:  none
	Confinement:		  none

Age at Entry:  23

Years Contracted:  5 

Education Level:  12				AFQT:  84

Highest Rate:  HT2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.0 (3)	Behavior:  4.0 (3)	OTA:  3.90 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal, Sharpshooter Rifle Ribbon, Expert Piston Ribbon, Overseas Service Ribbon (2), Joint Meritorious Unit Award, Humanitarian Service Medal, Coast Guard Special Operations Service Ribbon, Coast Guard Meritorious Unit Commendation, Expert 9MM Pistol, Expert M16A Rifle, 2nd Good Conduct Award

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events: 

981218:	Reenlisted this date for a term of 5 years.

020203:	The Special Courts-Martial, Navy and Marine Corps Trial Judiciary, Tidewater Judicial Court Stipulation of Facts statement signed by Mr. D_ M_(Defense Counsel), LT S_ J. L_ (Trial Counsel), and GM2 H_ on 18 February 2003, admitting to all charges (violations of UCMJ Articles 81, 107, 108 and 121) [Extracted from Preliminary Inquiry Report].

030303:	NJP for violations of UCMJ: 
Article 81: Conspiracy to commit larceny and sell military property, in that HT2 M_ S. M_, U.S. Navy , SEAL Team Two, on active duty, at or near Norfolk, Virginia, on or about 19 April 2002, conspire with GM2 M_ D. H_, U.S. Navy, Seal Team TWO, to commit an offense under the UCMJ, to wit: larceny of approximately nineteen bulletproof vests, of a value of about three thousand dollars ($3000.00), the property of the United States, and in order to effect the object of conspiracy the said HT2 M_ S. M_ and GM2 M_ D. H_ did take said vest from the SEAL Team TWO compound and travel to Superior Gun and Pawnshop, at or near Virginia Beach, Virginia and sell the vests for one thousand six hundred dollars and split proceeds between them.
Article 107: False official statement, in that HT2 M_ S. M_, USN, SEAL Team TWO, did on active duty, at or near Norfolk, Virginia, on or about 14 June 2002, with intent to deceive, make to Naval Criminal Investigative Service Special Agent J_ M_, an official statement, to wit: On 18 April 2002, myself and M_ H_ noticed two metal cruise boxes in the dumpster located behind the SEAL Team TWO compound.  Upon closer inspection we noticed the bullet proof vests.  We assumed they were intended for disposal,” or words to that effect, which statement was totally false, and was then known by the said HT2 M_ S. M_ to be so false.
Article 108: Sale of Military property of the United State, in that HT2 M_ S. M_, U.S. Navy, SEAL Team TWO, on active duty, did, at or near Virginia Beach, Virginia, on or about 19 April 2002, without proper authority, sell to Superior Gun and Pawnshop in Virginia Beach, Virginia approximately nineteen bulletproof vests, of a value of about three thousand dollars ($3000.00), military property of the United States.
Article 121: Larceny of property in excess of $100.00, in that HT2 M_ S. M_, U.S. Navy, SEAL Team TWO, on active duty, did, at or near Virginia Beach, Virginia, on or about 19 April 2002, steal nineteen bulletproof vests, of a value of about three thousand dollars ($3000.00), the property of the United States. 
	Award:  Reprimand: Oral/in writing, forfeiture of $912.00 pay per month for 2 months, restriction to TPU, Norfolk for 45 days, extra duty for 45 days, reduction to E-4.  No indication of appeal in the record.

030303:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service under other than honorable conditions by reason of misconduct commission of a serious offense.

030303:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

030303:	Commanding Officer, SEAL Team TWO recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.  Commanding Officer’s comments:  “HT2 M_ actions brings discredit to himself, the SEAL Teams, and the Navy.  He has no potential for further military service.  I strongly recommend HT2 M_ be separated from the United States Navy and that the characterization of that separation be an Under Other than Honorable discharge without any possibility for further reenlistment in any branch of the military service.”

030312:	Commander, Navy Region, Mid-Atlantic authorized the Applicant's discharge under other than honorable conditions by reason of misconduct commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030321 by reason of misconduct due to commission of a serious offense with a service characterization of under other than honorable conditions (A and 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).  

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 nonjudicial punishment proceedings for violations of Articles 81, 107, 108 and 121 of the UCMJ.  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 contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant contends that his characterization of service was unwarranted based on his entire service record.  The Applicant’s counsel requests relief based on the Applicant’s “exemplary record.”  Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  The Applicant’s violations of Articles 107, 108 and 121 are considered serious offenses and substantiate both the Applicant’s narrative reason for discharge and his character of service.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Relief denied.

The Board discovered no impropriety after a review of Applicant’s case.  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 sufficient 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.  Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 02 until Present, Article 1910-142 [formerly 3630605], SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 107, false official statement, Article 108, selling/otherwise disposing and Article 121, larceny.

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