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Docket No. ND05-00891

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

FOR OFFICIAL USE ONLY

 ex-SN, USN
Docket No. ND05-00891

Applicant’s Request

The application for discharge review was received on 20050503.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051117.  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 General (Under Honorable Conditions) by reason of pregnancy or childbirth.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application: 

“My discharge was inequitable because it was based on one isolated incident in 42 months of service with no other adverse action.

For the Article 92 that I disobeyed, I did 45 days restriction, 45 days Extra duty, loss my rate of MAA, lost my E-4, also I was a frocked E-5.  My incident was alcohol related & I was referred to SARD where I was found to be alcohol dependent, I did a rehabilitation program & have recovered from my addiction.”

Documentation

In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:

Letter from Applicant, undtd
Applicant’s DD Form 214
Evaluation Report and Counseling Record, dtd November 2, 2004
Substance Abuse Rehabilitation Program, SARD Health intake profile screening, dtd March 29, 2004

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20010425 - 20010529	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20010530		Date of Discharge:  20041103

Length of Service (years, months, days):

	Active:    03  05  04
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:	None
	Confinement:			None

Age at Entry:  17 (Parental Consent)

Years Contracted:  4 (12 month extension)

Education Level:  12				AFQT:  49

Highest Rate:  MA3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.40 (5)			Behavior:  2.80 (5)		OTA:  3.21

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal, Overseas Service Ribbon, Pistol Sharpshooter Ribbon

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

GENERAL (UNDER HONORABLE CONDITIONS)/PREGNANCY OR CHILDBIRTH, authority:  MILPERSMAN, Article 1910-112.

Chronological Listing of Significant Service Events: 

020108:	Mental Health Clinic:  Patient presents to clinic for urgent evaluation of depressive symptoms and possible “anxiety attacks.”  
	AXIS I:  Adjustment disorder with depressed mood.
		  Partner relationship problems
	AXIS II:  None
	AXIS III:  Probable PSVT.

031113:	NJP for violation of UCMJ, Article 92 (2 specs):
	Specification 1:  Fail to obey a lawful order issued by the CO by engaging in a display of affection onboard
	Specification 2:  Violate a lawful general order by wrongfully fraternizing.
	Award:  Forfeiture of $721 per month for 2 months, restriction and extra duty for 45 days, reduction to E-3.  No indication of appeal in the record.

031113:	Retention Warning:  Advised of deficiency (Applicant was found guilty at Captain’s Mast on 13 November 2004 of VUCMJ, Article 92, failure to obey lawful orders.  Further misconduct will not be tolerated and may result in Applicant’s administrative separation from the U.S. Navy.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

040218:	Counseling & Assistance Center, Alcohol and Drug Screening Report: Referred for alcohol screening.  Assessment: Applicant does meet criteria for substance dependence.  Plan: Medical screen for substance dependence.  Physical exam required within 30 days of attending treatment.  Attend 2 AA meetings per week until treatment.  ASAM Level 2.5 residential.

040329:	Substance Abuse Rehabilitation Program, SARD Health intake profile screening: Present to SARP for alcohol dependence.  Assessment and Diagnosis: Alcohol dependence.

041103:	DD Form 214:  Applicant discharged with a general (under honorable conditions) by reason of convenience of the government - pregnancy or childbirth.

Service Record did not contain the Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20041103 by reason of pregnancy or childbirth (A) with a general (under honorable conditions).  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).  The Board presumed regularity in the conduct of governmental affairs (D).

Under applicable regulations, separations based on convenience of the government – pregnancy should be honorable unless a general (under honorable conditions) or an entry-level separation is warranted.  A general discharge may be warranted if the Applicant’s service contains records of nonjudicial punishments, disciplinary actions, or if other significant negative aspects existed, which outweighed the positive aspects of the member’s period of service.  Additionally, a general discharge may be warranted if the Applicant’s performance evaluation averages are not sufficient to merit an honorable discharge.  The Applicant’s record contains evidence of one NJP proceeding for two violations of UCMJ Article 92, failure to obey a lawful order.  Based upon the Applicant’s misconduct, there was nothing improper in the award of a general (under honorable conditions) discharge.  Relief denied.

The Applicant contends that her discharge is inequitable because it is based on a single isolated incident in 42 months of total service.  Applicable regulations require that a Sailor’s characterization of service be based upon the member’s total performance of duty and conduct during the current enlistment.  Furthermore, there are circumstances where conduct or performance of duty reflected by a single adverse incident may form the basis of characterization for a Sailor’s overall service.  The incident need not result in formal punishment to be properly used to characterize a Sailor’s service.  As noted above, the Applicant’s service was marred by NJP proceedings for violations of UCMJ Article 92.  Under applicable regulations, a violation of UCMJ Article 92 is a serious offense.  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.

The Applicant implies that alcoholism was the cause of her misconduct.  Notwithstanding the veracity of her claims, such conditions will not normally excuse a servicemember from legal liability for her misconduct, unless the Applicant can show a lack of mental responsibility through the presentation of substantial and credible evidence.  The evidence of record failed to demonstrate that the Applicant was unable to appreciate the nature and quality or the wrongfulness of her acts.  As such, the Board presumed that the Applicant was responsible for her misconduct and concluded that she should be held accountable for her actions.  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.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 02 until 24 May 2005, Article 1910-112 (previously 3620220), SEPARATION BY REASON OF CONVENIENCE OF THE GOVERNMENT – PREGNANCY.

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

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

D.   Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.  

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