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Docket No. ND01-00918

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

 ex-AOAN, USN
Docket No. ND01-00918

Applicant’s Request

The application for discharge review, received 010709, requested that the characterization of service on the discharge be changed to honorable or entry level separation or uncharacterized and the reason for the discharge be changed to Parenthood.  The applicant requested a documentary record discharge review.  The applicant listed the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020130.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character and reason for the discharge shall not change.  The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  (Equity Issue) This former member avers that she was mistakenly issued a General discharge for misconduct when she should have been discharged with a full Honorable due to parenthood. 

2.  (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.

Documentation

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

Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	971031 - 980720	COG

Period of Service Under Review:

Date of Enlistment:  980721		Date of Discharge:  000823

Length of Service (years, months, days):

	Active:    02  01  03
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  38

Highest Rate:  AOAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (1)	Behavior:  2.00 (1)		OTA:  2.50

Military Decorations:  None

Unit/Campaign/Service Awards:  MUC

Days of Unauthorized Absence:  None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events:

990205:	NJP for violation of UCMJ, Article 92: Orders violation.
	Award: Forfeiture of $234 per month for 1 month, restriction and extra duty for 14 days.  No indication of appeal in the record.

990205:	Retention Warning:  Advised of deficiency (Underage drinking.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
000720:	Applicant charged with violation of UCMJ, Article 86: Unauthorized absence from 0730, 19Jun00 to 0730, 28Jun00 and violation of UCMJ, Article 134: Wrongfully and falsely alter a leave request/authorization form by changing the date of return from 27 June to 28 June.

000814:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

000814:	Applicant advised of her rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

000905:	Commanding officer directed discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.  Commanding officer’s comments (verbatim):  AOAN (applicant) has been a substandard performer throughout her naval career.  Prior to her arrival at Naval Air Station, Fallon, she appeared at Officer-in-Charge's nonjudicial punishment for failing to obey a lawful order.  She has been a burden to this command since her arrival and most recently, AOAN (applicant) commenced a period of unauthorized absence and attempted to excuse the absence by falsifying a leave request.  Rather than taking AOAN (applicant) to nonjudicial punishment for her misconduct, I decided the Navy would be better served by processing her for administrative separation due to commission of serious offense.  AOAN (applicant's) misconduct is unacceptable and she was therefore separate from the Naval service with a general discharge.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 000823 general (under honorable conditions) for misconduct due to commission of a serious offense (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).

The applicant’s first issue states:  “(Equity Issue) This former member avers that she was mistakenly issued a General discharge for misconduct when she should have been discharged with a full Honorable due to parenthood.”  The record clearly shows that the applicant was processed and discharged for her commission of a serious offense.  The record shows the applicant was properly notified of her discharge and advised of her rights.  There is nothing in the record that supports this issue, nor did the applicant provide documentary evidence to show she was processed for discharge due to parenthood.  The character of service and the reason for discharge were properly and equitably assigned.  Relief is denied.

The applicant’s second issue states:  “(Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of this application.”  The NDRB is authorized to consider post-service factors in the re characterization of a discharge.  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 the civilian life subsequent to leaving the service.  Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, 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, may be considered by the NDRB.  The applicant failed to provide documentary evidence to demonstrate her positive community service, employment history, and clean police record.  Relief is not warranted.

The applicant remains eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearing is recommended. 

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 28, effective 
30 Mar 00 until 29 Aug 00, Article 1910-142  [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

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 "afls10.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

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
INDEX:  A6750/A9221/A9217/A0103/