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NAVY | DRB | 2001_Navy | ND01-01017
Original file (ND01-01017.rtf) Auto-classification: Denied


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

ex-YNSA, USN
Docket No. ND01-01017

Applicant’s Request
The application for discharge review, received 010730, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020221. 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 of the discharge shall not change. The discharge shall remain: GENERAL UNDER HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. My discharge is, I must say that I am pleased with the discharge I have now, during the time that I was in the Navy I had gotten in pregnant and stayed away from my command for a short time. However, I did not stay gone over 30 days. I was alone and pregnant, not to mention stressed from the work I was doing. My ship command transferred me to a shore command at Naval Air Station, Norfolk VA. My rate was yeoman, but I was not working as a yeoman. I was assigned to maintain cleanliness through out the building and offices. I had to scrub floors, mop, sweep, strip, etc… I felt that was no place for someone pregnant. Which led to my misconduct and discharge. Any consideration is greatly appreciated.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of Adverse Performance Evaluation Report
Copies of DD Form 214 (2)
Copies of Enlisted Performance Evaluation Reports (4pgs)


PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     930302 - 930316  COG

 Period of Service Under Review :
Date of Enlistment: 930317               Date of Discharge: 951017

 Length of Service (years, months, days):

         Active: 02 06 00
         Inactive: None

 Age at Entry: 26                          Years Contracted: 4

Education Level: 12                        AFQT: 39

 Highest Rate: YNSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.15 (4)    Behavior: 2.70 (4)                OTA: 3.20

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR

Days of Unauthorized Absence: 41

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

GENERAL UNDER HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

930318:  You are being retained in the Naval service, despite your defective enlistment and induction due to fraudulent entry into naval service as evidenced by your failure to disclose your preservice civil involvement: Speeding on 8710, Winnfield, LA, Paid $1800.00 fine; Speeding on 9007, Marshall, TX, $130.00 fine, unpaid. However, any further deficiencies in performance or conduct may result in processing for administrative separation.

950320:  NJP for violation of UCMJ, Article 86 (4 Specs): unauthorized absence from unit from 0700, 950129 to 1230, 950131; 1345, 950202 to 0750, 950206; 0700, 950207 to 0630, 950228; 0700, 950302 to 0730, 950302, and Article 87, for missing ship's movement on 950213) .
         Award: Forfeiture of $478.00 per month for 2 months(suspended for 6 months), restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.

950320:  Retention Warning: Advised of deficiency (Specifically, you were seen at CO's NJP on 950320 for violation of the UCMJ, Article 86, (4 Specifications), unauthorized absence from unit from 0700, 950129 to 1230, 950131; 1345, 950202 to 0750, 950206; 0700, 950207 to 0630, 950228; 0700, 950302 to 0730, 950207, and Article 87, for missing ship's movement on 950213), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
950524:  Report of Declaration of Deserter (NAVPERS 1600-3). Applicant previously apprehended 950518 while in an unauthorized absence status. Declared a deserter on 950523 having been an unauthorized absentee since 0700, 950519 from BLDG u-16 (Restricted Barracks) NAS NORFOLK VA.

950603:  NJP for violation of UCMJ, Article 86: UA, violation of UCMJ Article 107: Did on or about 950508, with intent to deceive, record of official statement, to wit: "Patient is to return to work on 3/11/95" or words to that effect on Discharge Instruction from Naval Hospital Portsmouth, VA, which record was then known by the said YNSA Q____ to be false.
         Award: Forfeiture of $200.00 per month for 1 month, reduction in rate (suspended for 6 months). No indication of appeal in the record.

950606:  Report of Return of Deserter. Applicant surrendered on board VAW 120 on 950605 (0700).
950613:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by your falsifying your discharge instructions from Naval Hospital, Portsmouth, Virginia.
950622:          Applicant advised of her rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
950801:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed a serious offense, that the misconduct warranted separation, and recommended discharge general under honorable conditions.

950814:  Commanding officer recommended discharge general under honorable conditions by reason of misconduct due to the commission of a serious offense.

950918:  BUPERS directed the applicant's discharge general under honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 951017 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).

Issue 1. The applicant failed to convince the Board that her alleged mistreatment mitigates her misconduct. While she may feel that her pregnancy was a factor that contributed to her actions, the record clearly reflects her willful disregard for the requirements of military discipline and demonstrated that she was unfit for further service. The record is devoid of evidence that the applicant was not responsible for her conduct or that she should not be held accountable for her actions. Relief denied.

The applicant’s discharge characterization accurately reflects her service to her country. The discharge was proper and equitable. Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the applicant’s enlistment. Additionally, 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 the service. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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. 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. Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct. The applicant did not provide sufficient documentation to warrant an upgrade to his discharge. He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge. The applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Legal representation at a personal appearance hearing is highly recommended but not required. Relief denied.


Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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      

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