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Docket No. ND06-00306

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

FOR OFFICIAL USE ONLY

ex-GM3, USN
Docket No. ND06-00306

Applicant’s Request

The application for discharge review was received on 20051213.  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 20061025.  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 shall not change.  The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to a pattern of misconduct.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“I request a change of discharge from reentry code RE-4 to RE-3B which was requested and denied even after proof for parenthood discharge was given.  Also a review of a debt owed to Navy and unfinished dental work that was never finished due to discharge without checking with dental.  My name is K_ L. A_(Applicant) in all document but the military after name-change during enlistment.  No social security name change.”

Documentation

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

Applicant’s DD Form 214
Letter to Navy Personnel Command, unsigned, dtd October 2002
Letter to Navy Personnel Command, dtd October 7, 2002
Applicant’s Personal Representation Data Sheet, dtd October 5, 2002 (3 pages)
Seventeen pages from Applicant’s service/dental records
Statement from Applicant’s dentist office, dtd October 26, 2005
Applicant’s treatment plan from dentist office, dtd September 2, 2003
Collection notice to Applicant from OCWEN for delinquent debt from the United States Department of Treasury, dtd July 18, 2004
Applicant’s dental records
Certificate of Completion from College of Applied Technology, Center for Workforce Training for Phlebotomy, dtd July 6, 2004

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19990123 - 19991101	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19991102		Date of Discharge:  20021123

Length of Service (years, months, days):

	Active:    03  00  22  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  2 days
	Confinement:		  None

Age at Entry:  19

Years Contracted:  4

Education Level:  12				AFQT:  53

Highest Rate:  GM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.0 (4)			 Behavior:  2.8 (4)		OTA:  2.92

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

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority:  MILPERSMAN, Article 1910-140 (formerly 3630600).

Chronological Listing of Significant Service Events: 

001023:	NJP for violation of UCMJ, Article 91: Insubordinate conduct towards a Warrant Officer or Noncommissioned Officer, or Petty Officer.
Violation of UCMJ, Article 92: Failure to obey order or regulation.
	Award:  Restriction and extra duty for 30 days.  No indication of appeal in the record.

001023:	Retention Warning:  Advised of deficiency (Captains Mast:  Violation of UCMJ Art 91 Insubordinate conduct and Art 92 Failure to obey order or regulation.  Awarded 30 days restriction and extra duty.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

010713:	NJP for violation of UCMJ, Article 86: Unauthorized absence.
Violation of UCMJ, Article 92: Failure to obey order or regulation.
	Award:  Confinement on bread and water for 3 days.  No indication of appeal in the record.

020819:	Retention Warning:  Advised of deficiency (Inability to comply with a Family Care Plan (NAVPERS 1740/6 (4-96)).), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

021028:	Retention Warning:  Advised of deficiency (Inability to comply with a Family Care Plan (NAVPERS 1740/6 (4-96)).  Applicant was previously given an Administrative Remarks NAVPERS 1070/613 on 020819 on inability to provide childcare for dependent son.  Applicant has been given numerous leave and liberty to correct this deficiency since the birth of dependent son.  This Administrative Remarks NAVPERS 1070/613 is a direct order for Applicant to provide childcare for dependent son.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

021028:	Applicant to unauthorized absence at 0730 on 021028.  [Extracted from NAVPERS 1070/613 dated 021030 and 021107.]

021030:	Applicant from unauthorized absence at 0930 on 021030 (2 days/surrendered).  [Extracted from NAVPERS 1070/613 dated 021030 and 021107.]

021030:	Retention Warning:  Advised of deficiency (Inability to comply with a Family Care Plan (NAVPERS 1740/6 (4/96))  Applicant was previously given an Administrative Remarks NAVPERS 1070/613 on 020819 on inability to provide childcare for dependent son.  Applicant had been given numerous leave and liberty to correct this deficiency since the birth of dependent son.  This Administrative Remarks NAVPERS 1070/613 is a direct order for Applicant to provide childcare for dependent son.  Applicant was on unauthorized absence from 0730 on 021028 until 0930 on 021030.  Applicant terminated unauthorized absence with baby in arms.  This was a failure to have provided adequate childcare.

021107:	Retention Warning:  Advised of deficiency (Inability to comply with a Family Care Plan (NAVPERS 1740/6 (4-96)).  Applicant was previously given an Administrative Remarks NAVPERS 1070/613 on 020819 on inability to provide childcare for dependent son.  Applicant had been given numerous leave and liberty to correct this deficiency since the birth of dependent son.  This Administrative Remarks NAVPERS 1070/613 is a direct order for Applicant to provide childcare for dependent son.  The Applicant acknowledged that she is not authorized to extend her current enlistment or reenlist without authorization from Commander, Navy Personnel Command (PERS 832).

021118:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable by reason of misconduct - pattern of misconduct.

021118:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

021118:	Commanding Officer, Fleet Technical Support Center, Pacific, San Diego, CA, recommended discharge under other than honorable conditions by reason of misconduct - pattern of misconduct.  Commanding Officer’s comments:  “Strongly recommend separation with an Other Than Honorable discharge characterization.  Petty Officer M_(Applicant) fails to demonstrate any awareness or concern for her responsibilities and requirements as a military servicemember.  SNM(Applicant) has made little effort to comply with legal orders and administrative requirements, and no effort to ensure her presence onboard for routine working days.  This substandard performer contributes negatively towards good order and discipline, and her habitual misconduct clearly identifies her as having no potential for further military service.”

021120:	Commander, Navy Region Southwest, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to pattern of minor disciplinary infractions.

021216:	CNPC message to PERSUPP DET NAVSTA, San Diego, CA to issue DD Form 215 to correct SPD Code to HKA and Narrative Reason for Separation to PATTERN OF MISCONDUCT.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20021123 by reason of misconduct due to a pattern of misconduct (A) with a service characterization of under other than honorable conditions.  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 (B and C).

The Applicant implies that her discharge is improper because she had proof for a parenthood discharge.  By regulation, a discharge shall be deemed proper, unless it is determined that an error of fact, law, procedure, or discretion has substantially prejudiced the rights of the Applicant.  The Applicant was discharged Under Other Than Honorable Conditions by reason of misconduct due to a pattern of misconduct.  A review of the Applicant’s service record convinced the Board that a preponderance of evidence exists to support the Applicant’s basis for separation by virtue of her two NJPs on 20001023 and 20010713.  The Applicant was awarded NJPs for violations of UCMJ Article 86 Unauthorized absence, Article 91 Insubordinate conduct, and Article 92 Failure to obey order or regulation.  The Applicant also received five retention warnings on 20001023, 20020819, 20021028, 20021030, and 20021107.  The record further reveals that the Applicant was properly processed and notified for separation by reason of misconduct due to pattern of misconduct on 20021118 with a least favorable characterization of Under Other Than Honorable Conditions.  On 20021118, the Commanding Officer, Fleet Technical Support Center, San Diego, recommended to Commander, Navy Region Southwest, that the Applicant be discharged with an Under Other Than Honorable Conditions by reason of misconduct due to a pattern of misconduct.  On 20021120, the Commander, Navy Region Southwest, directed the Applicant’s discharge.  Based upon the above review, the Board unanimously concluded that the Applicant’s discharge processing was in substantial compliance with applicable statutes, rules, and regulations.  Despite the Applicant’s contentions, the Board could find no error of fact, law, procedure, or discretion that might afford her relief.  Thus, the Board concluded that relief is not warranted.

The Applicant requests an RE Code change from RE-4 to RE-3B.  The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into any of the Armed Forces.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, a request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Regulations limit this Board’s review to a determination on the propriety and equity of the discharge.  Since these issues do not serve to provide a foundation upon which the Board can grant relief, relief on this basis is not warranted.

While 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 service, the Board 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.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  The Applicant submitted a certificate of completion for consideration.  The Applicant’s efforts need to be more encompassing to include verifiable employment records, documented community service, and certification of non-involvement with civil authorities.  At this time, there is not sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in the characterization of discharge.  And so, no relief is granted on this basis.

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 post-service accomplishments or any other evidence related to the 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 2002 until Present, 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 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.

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