Author: CAP
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Docket No. ND05-00500

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

ex-AN, USN
Docket No. ND05-00500

Applicant’s Request

The application for discharge review was received on 20050202.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable or uncharacterized/entry level separation and the reason for the discharge be changed to “hardship (parenthood)”.  The Applicant requests a documentary record review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20050511.  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.  However, the NDRB did discover an inequity in the Applicant’s Narrative Reason for Separation.  The Board’s vote was unanimous that the character of the discharge shall not change and by a vote of 3 to 2 that the Narrative Reason for Separation shall change.  The discharge shall become:  GENERAL (UNDER HONORABLE CONDTIONS)/PARENTHOOD, authority: NAVMILPERSMAN, Article 1910-124 (formerly 3620215), separation code of JDG.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “Hello I am submitting this application because I am ready, able and willing to serve my country once again.  I really feel it was an unjustice that I received a RE-4 code.  Let me get down to my story.  When I first entered the service everything was fine until I got to my 1^st command.  My chief was always calling me a gang member and threatening me she also threatened my husband.  When I decided to report it, she got furious before than I had been on restriction for being late to work I was in the mess deck crew at the time after I reported the incident she kept trying to get me in trouble I stay clear away but still she was a chief she could basiclly go anywhere so keep in mind I was pregnant at the time and sick half the time I was also taken to mass for throwing up.  Which was later dropped.  But after I got off the ship to serve the rest of my time I got off restriction about 2 ½ weeks early.  Now 1 whole year later I was doing good and put in a hardship due to having a child and in Feb. 2001 they approved it but they gave me a pattern of mis-conduct.  That was not right.  I was told to try 6 months to a year to change it.  Please help me.  Everything should be in my record.  Thank you.  R_ Q_ (Applicant)”

Documentation

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

Applicant’s DD Form 214
Administrative Discharge Questionnaire (9 pages)
Letter from L_ C_, Member of Congress to Applicant, dated 010212
Letter from J. F. B_, CAPT, USN, Commanding Officer to L_ C_, Member of Congress, dated 010202 (2 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	990618 - 990629	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  990630		Date of Discharge:  010302

Length of Service (years, months, days):

	Active:    01  08  03
	Inactive:  None

Age at Entry:  22			Years Contracted:  4

Education Level:  12			AFQT:  48

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  1.00 (1)		Behavior:  1.00 (1)		OTA:  1.00

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

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

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

Chronological Listing of Significant Service Events:

000211:	NJP for violation of UCMJ, Article 86 (4 Specs):  Unauthorized absence from unit/failure to go to appointed place of duty, violation of UCMJ, Article 107 (2 Specs):  False official statement.
Award:  Forfeiture of $200 pay per month for 2 months, restriction 60 days.  No indication of appeal in the record.

000211:	Retention Warning:  Advised of deficiency (Violation of UCMJ, Article 86 – Absent from unit, Violation of UCMJ, Article 86 – Failure to go to appointed place of duty, Violation of UCMJ, Article 107 – False official statement), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

000308:	NJP for violation of UCMJ, Article 86:  Absent from unit; violation of UCMJ, Article 92:  Failure to obey a lawful order.
Award:  Forfeiture of $502.80 pay per month for 2 months, restriction for 15 days.  No indication of appeal in the record.

000904:	Family Care Plan Certificate:  Applicant indicated that she was unable to comply with the Navy's policy for dependent care.

000904:	Retention Warning:  Advised of deficiency (Applicant failed to complete a Dependent Care Certificate (OPNAV 1740/1) as required by OPNAVINST 1740.4 which assures worldwide assignment availability and availability to perform a full range of military duties and assignments will cause the Applicant to be administratively processed on the basis of convenience of the government due to parenthood), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

000918:	Family Care Plan Certificate:  Applicant indicated that she was unable to comply with the Navy's policy for dependent care.

001026:	Family Care Plan Certificate:  Applicant indicated that she was unable to comply with the Navy's policy for dependent care.

001211:	Family Care Plan Certificate:  Applicant indicated that she was unable to comply with the Navy's policy for dependent care.

0001213:	Applicant notified of intended recommendation for discharge by reason of convenience of the government due to parenthood, by reason of misconduct due to a pattern of misconduct, and by reason of misconduct due to commission of a serious offense.  Applicant notified that if separation is approved, the least favorable characterization of service possible is general (under honorable conditions).

001214:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights except the right to submit statements for consideration by the separation authority and to obtain copies of the documents used to support the basis for the separation.

001228:	Commanding Officer recommended discharge with a general (under honorable conditions) by reason of convenience of the government due to parenthood, misconduct due to a pattern of misconduct and misconduct due to commission of a serious offense

010119:	CNMPC directed the Applicant's discharge with a general (under 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 20010302 with a general (under 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, but the Narrative Reason for Separation was inequitable (C and D).

Issue 1.  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 with respect to the characterization of discharge.  When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  A general discharge is warranted for behavior not sufficiently meritorious to warrant an honorable discharge.  The Applicant’s service was marred by two nonjudicial punishment proceedings for violations of UCMJ Articles 86, unauthorized absence offenses, 92, failure to obey order or regulation, and 107, false official statement.  The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her willful failure to meet the requirements of her contract with the U.S. Navy.  Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of her characterization of service.  Relief is not warranted.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

The Applicant contends that her Narrative Reason for Separation is inequitable.  The evidence of record indicates that the Applicant initiated her separation processing by virtue of her submission of a request for discharge on the basis of parenthood.  The record further reveals that in reviewing the Applicant’s request a review of her service record indicated she should also be processed for misconduct – pattern of misconduct.  Although such dual processing is proper, the Board determined by a 3 to 2 vote that her Narrative Reason for Separation was inequitable.  The Applicant initiated her separation processing and her command apparently had no interest in processing her for her misconduct independent of processing her for parenthood.  As such, the Board found that the appropriate Narrative Reason for Separation should be convenience of the government – parenthood.  No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged.  Relief granted.

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), Change 18, effective
12 Dec 1997 until 21 Aug 2002, 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

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.