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AMATO v. CHAFEE

January 31, 1972

Vito AMATO, Plaintiff,
v.
John CHAFEE, Secretary of the United States Navy, Defendant


John H. Pratt, District Judge.


The opinion of the court was delivered by: PRATT

JOHN H. PRATT, District Judge.

 I. Preliminary Statement

 Plaintiff herein seeks relief in the nature of an order directing the defendant Secretary of the Navy to change the character of the discharge plaintiff received in 1968 from undesirable to "General under Honorable Conditions." He thus requests the Court to review the administrative proceedings had in the Department of the Navy which resulted in the issuance of plaintiff's discharge and the later determination not to change the character thereof.

 Plaintiff voluntarily enlisted in the United States Navy on February 15, 1967, at Fort Hamilton, New York. On August 2, 1968, while assigned to the U.S. Naval Station at San Diego, California, plaintiff, upon his plea of guilty, was convicted by the Municipal Court of said city of willfully and unlawfully taking another's personal property.

 On October 28, 1968, plaintiff was advised in writing by his Commanding Officer that he was to be recommended for an "administrative discharge by reason of misconduct" on account of his having been convicted by a civil court of an offense involving moral turpitude, as provided for by Article C-10312 of the Bureau of Naval Personnel (hereinafter "BUPERS") Manual.

 Plaintiff was fully and correctly advised of the nature of the proceedings being instituted against him, and the reason therefor, the possible consequences attendant to the issuance of an undesirable discharge, and the privileges relating to a hearing, representation by counsel, personal appearance and submission of statements, with respect to such proceedings, by Lieutenant John Sargent Meyer, Judge Advocate General's Corps, U.S. Navy, a lawyer within the meaning of Article 27(b)(1) of the Uniform Code of Military Justice (i.e., a member of the bar). Having been thus advised, plaintiff, in the presence of the legal officer, personally executed the following statement:

 
"I understand that I am being considered for an administrative discharge because of civil conviction involving moral turpitude to wit: Unlawfully taking personal property and that I am subject to and may be separated with an undesirable discharge. I understand that an undesirable discharge is under other than honorable conditions and may deprive me of virtually all veterans benefits based on my current period of active service, and that I may expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered in any branch of the Armed Forces or the character of discharge may have a bearing. I understand that I may request or waive the privileges listed below. Understanding all of the foregoing and after being counseled by a lawyer within the meaning of Article 27(b)(1), UCMJ, I desire to avail mayself [sic] of the privileges I have checked below:
 
(1) x None of the privileges listed below.
 
(2) To have my case heard by a board of not less than three officers.
 
(3) To appear in person before such board (unless civil confinement or otherwise unavailable).
 
(4) To be represented by counsel who, if reasonably available, should be a lawyer.
 
(5) To submit statements in my own behalf.

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