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NAVY | DRB | 2001_Navy | ND01-01198
Original file (ND01-01198.rtf) Auto-classification: Denied


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

ex-MM2, USN
Docket No. ND01-01198

Applicant’s Request
The application for discharge review, received 010920, requested that the reason for the discharge be changed to hardship or Honorable w/o misconduct. The Applicant requested a personal appearance hearing before the board in the Washington National Capital Region. The Applicant did not list any representative on the DD Form 293. Subsequent to the application, the Applicant obtained representation by the Veterans of Foreign Wars.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 030317. 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 and reason for discharge shall not change. The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-142 (formerly 3630605).


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

 1. Equity.
Documentation
In addition to the service record and the previous case, the following additional documentation, submitted by the Applicant, was considered:
Court order custody paper (9 pages) dated July 15, 1998
Four pages from Applicant's service record
Copy of performance appraisal dated May 15, 2001
Microsoft Certified Professional transcript July 5, 2001
Copy of student schedule from Cascadia Community College dated August 15, 2001
Copy of leave and earning statement dated November 21, 1994

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN               931123 - 960118  HON
         Inactive: USNR (DEP)     930302 - 931122  COG

 Period of Service Under Review :
Date of Enlistment: 960119               Date of Discharge: 990120

 Length of Service (years, months, days):

         Active: 03 00 02
         Inactive: None

 Age at Entry: 21                          Years Contracted: 6

 Education Level: 12                        AFQT: 85

 Highest Rate: MM2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.50 (4)    Behavior: 3.25 (4)                OTA: 3.25

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, GCM

 Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

 Chronological Listing of Significant Service Events :

941121   LES Statement G. I. Bill deductions total $1200.00 as of Nov 94.

960119:  Applicant reenlisted for 6 years.

980610:  Applicant briefed concerning regulations and necessary steps required before request submitted for reassignment for humanitarian reasons. Acknowledged that: if these steps are not completed by the end of emergency leave, Applicant subject to administrative action, and, that request could not be submitted until divorce final on 24Jun98.

980611:  Applicant briefed concerning conditions of emergency leave. Applicant instructed to report to USS ABRAHAM LINCOLN on 16Jun98 for WESTPAC deployment.

980611:  Applicant to emergency leave.

980617:  Applicant missed ship's movement.

990108:  Applicant notified of intended recommendation for discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.
990108:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
990119:  Commanding Officer recommended discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.

990326   COMNAVPERSCOM message indicates service member separated for misconduct-commission of a serious offense. DD214 cites SPD code of HKQ, which is for ADSEP board entitled/not held. Instructed USS ABRAHAM LINCOLN to Issue DD215 to reflect correct SPD code of JKQ, involuntary discharge no board entitlement.

000831:  NDRB documentary record review Docket Number ND00-00394 conducted. Determination: discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 990120 with a discharge characterization of 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 believes that his general discharge for misconduct due to commission of a serious offense, i.e. missing ships movement, was inequitable. The Applicant contends that his inability to find suitable care for his minor child while he was on deployment does not constitute misconduct, when the circumstances surrounding his situation are taken into consideration. Regulations limit the NDRB’s review to a determination on the propriety and equity of a discharge. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable.

While the Board respects the fact that the Applicant took full parental responsibility for the care of his minor child, his inaction in establishing an adequate child care plan and his missing ship’s movement was still in direct violation of the orders and directives that regulate good order and discipline in the naval service. The Applicant had from December 1996 until June 1998 to develop a viable child care plan or request processing for an administrative separation due to parenthood. It is the opinion of the Board that the Applicant, through his own inaction, left his command no alternative other than to process him for separation for his own misconduct. Relief denied.

Missing ships movement is a serious offense and a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 87, Missed movement, if adjudged at a Special or General Court-Martial . The Applicant not only missed ships movement but was also not available to perform his assigned duties as required during his ship's major WESTPAC deployment. The Applicant’s service is equitably characterized as general (under honorable conditions) and the reason for discharge, misconduct, appropriately describes the reason for the Applicant’s discharge. A characterization of service of general (under honorable conditions) is warranted when significant negative aspects of a service member’s conduct or performance of duty outweigh the positive aspects of the service member’s military record. The Applicant’s inaction with regard to making the proper arrangements for the care of his minor child and subsequently missing ships movement constitutes a serious departure from the conduct expected from a sailor.

T he Applicant’s conduct, which forms the primary basis for determining the character of service, reflects his disobedience of the orders and directives that regulate good order and discipline in the naval service, and falls short of that required for a fully honorable characterization of service. The record is devoid of evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. After a complete review of the record, including the evidence submitted by the Applicant, and his sworn testimony, the Board determined that the Applicant’s discharge was proper and equitable. An upgrade to fully honorable would be inappropriate. Relief denied.


Pertinent Regulation/Law (at time of discharge)
A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective
12 Dec 97 until 29 March 2000, Article 1910-142 [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT- COMMISSION OF A SERIOUS OFFENSE .

B. In Appendix 12 of the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article [e.g., 87, Missed movement] if adjudged at a Special or General Court Martial.
C. 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.

D. 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.

E. 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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