ex-SK3, USN
ND07-00670

Current Discharge and Applicant’s Request

Application Received:  20070420 	Characterization Received:  
Narrative Reason:  PARENTHOOD OR CUSTODY OF MINOR CHILDREN 	Authority:  MILPERSMAN 1910-124

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1. Enhance employment
			2. Discharge not warranted by service record

Decision

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  PARENTHOOD OR CUSTODY OF MINOR CHILDREN.

Date:  20071205		Location:  Washington D.C	 Representation:  

Discussion

Issue 1:   either  which the Board cannot form the basis of relief for the Applicant, or  the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum regarding .

Issue 2 ().  Per regulation, when the reason for separation is parenthood, characterization of service is honorable, unless an entry level separation (ELS) or general (under honorable conditions) is warranted.   The Applicant was not eligible for ELS.  A general discharge is warranted when service has been honest and faithful, but significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record.  The Board noted that the Applicant’s record contained no evidence of misconduct, that her only counseling was in reference her inability to comply with the Navy’s Family Care policy, that non-compliance does not equate to mandatory separation processing, that her final evaluation was favorable and her Commanding Officer made no mention of any negative aspects of her performance which would tend toward the characterization of service as something less than honorable.  Further, the Board noted an error in the Applicant’s processing.  First, she was counseled after being notified of separation processing rather than prior to with a reasonable opportunity to comply.  Second, her notification indicated that general court-martial convening authority review of her proposed separation was “not applicable” when she was entitled to such review.  The Board determined that the Applicant was not prejudiced by these errors as a matter of propriety; however, these errors contributed to the Board’s concerns about the Applicant’s characterization of service.  For all of these reasons, and especially in light of her credible service throughout her over 5 years of active duty, the Board determined that the appropriate characterization of the Applicant’s service was honorable.

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that 

Summary of Service

Prior Service:
Inactive: USNR (DEP)	19990813 - 19991004  		Active:   	
Period of Service Under Review:
Date of Enlistment: 19991005	Years Contracted:  ; Extension:  	Date of Discharge:  20050127
Length of Service:  05  Yrs  03  Mths  23  Dys	Lost Time:  Days UA:    Days Confined:  
Education Level:  	Age at Enlistment:  	AFQT:  55	Highest Rank/Rate:  SK3
Evaluation marks (# of occasions):	Performance:  4.0(1)	Behavior:  3.0(1)		 OTA:  3.50 
Awards and Decorations (per DD 214):  LOC, NAVY "E", NDSM, M-11 MARKSMAN

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

20031015:	Applicant extended enlistment for 6 months (total aggregate 11 months), new EAS 20040904.

20040110:	Applicant’s dependent daughter born.

20040406:	Applicant extended enlistment for 7 months (total aggregate 18 months), new EAS 20050404.

20040419:	Applicant transferred and joined to USS THEODORE ROOSEVELT (CVN 71).

20041007:	Applicant submits Family Care Plan Certificate indicating “Not Comply” on blocks 1 – 11.

20041112:	Retention Warning for non-compliance with DON Family Care Plan certificate and world-wide availability.

Discharge Process

Date Notified:					20041111
Reason for Discharge:	 - 
Least Favorable Characterization:	

Date Applicant Responded to Notification:		20041111
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			  
	Administrative Board			* (See discussion of Issue 2)
	GCMCA review				* See discussion of Issue 2)

Commanding Officer Recommendation (date):	
Separation Authority (date):	CO, USS THEODORE ROOSEVELT (CVN 71) (20050120)
              Reason for discharge directed:	 - 
              Characterization directed:	
Date Applicant Discharged:	20050127

Types of Documents Submitted by Applicant and Considered By Board

Related to Military Service:	Service and/or Medical Record:  		Other Records:  

Related to Post-Service Period:  	
	Employment:  			Finances:  			Education: 		
	Health/Medical Records:  		Substance Abuse:			Criminal Records:  	
	Family/Personal Status: 		Community Service:  		References:  		
	
Additional Statements From Applicant:  	From Representative:    		Other Documentation (Describe)       

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C, re-issued October 2002, effective 22 Aug 2002 until 19 May 2005, Article 1910-124 (previously 3620215), Separation by reason of Convenience of the Government - Parenthood.

B.  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 V, Para 502, Propriety and Para 503, Equity.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC  20301-4000.  You should read Enclosure (5) of the Instruction 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 Instruction 1332.28 and other Decisional Documents by going online at “http://Boards.law.af.mil.”

Additional Reviews:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the date of discharge.  The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge.  Representation at a personal appearance hearing is recommended but not required.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

Employment/Educational Opportunities:  The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  

Reenlistment/RE-code:  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.  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.

Medical Conditions and Misconduct:  DoD disability regulations do not preclude a disciplinary separation.  Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons.  Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record.  Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or “PTSD.”  Only the Board for Correction of Naval Records can grant this type of narrative reason change.  

Automatic Upgrades - 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 Naval service.  The NDRB 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.  Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  

Issues Concerning Bad-Conduct Discharges (BCD) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief.  With respect to a discharge adjudged by a court-martial, the action of the NDRB is restricted to upgrades based on clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  

Board Membership:  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