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NAVY | DRB | 2002_Navy | ND02-00280
Original file (ND02-00280.rtf) Auto-classification: Denied


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

ex-AR, USN
Docket No. ND02-00280

Applicant’s Request
The application for discharge review, received 020122, 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 021121. 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: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. I (Applicant) am a single mother of two children. E_ H_ who is 14 years old, N_ T_ who is 2 yrs old. When I entered the Navy in Nov of 97 out of VA, my mother L_ V. H_ was living so she took custody of my only daughter E_ at the time. My mother died in May of 99 when I was pregnant with my second daughter N_. After my mother's death I had to relocate my daughter E_ to Florida with me. No one in my family could care for her to enable me to deploy with Navy. After the birth of N_ I became depressed because I did not have any child care and began using marijuana. I informed my chain of command on the USS John F. Kennedy of my childcare issue. I submitted a child care certificate stating I could no longer comply with child care and ran it up my chain of command. In which I was told by personnel to do. My chain of command used my lack of knowledge in this situation against me. They did not help my situation at all and that’s why I went UA and I suffered greatly I feel I have paid for my mistakes. I was taken from my kids put on pretrial restriction and brig confinement. In which I had to leave my kids with my irresponsible fiancée, they weren't taken care of. On Sept 13, 00 I went to personnel and asked what to do when you no longer have child care. Chief M_ gave me a family care plan certificate, and told me to draw a line through the 3 pg's and cannot comply and run it up my chain of command. I started with AO1 S_; G-4 LPO. AO1 gave it to Warrant Officer B_. Warrant Officer B_ yelled at me and said I'm not taking this, I need a letter stating why you can't comply. I said yes sir. I now know at that point I was supposed to sign my pg 13, I was never instructed to do so. The first letter I wrote explaining why I could not comply, Warrant Officer B_ did not accept. I was told it needs to be more in-depth. I wrote a more in-depth letter. At this point I'm with no childcare and discouraged. Sept 17, 00 I had a friend bring the chit aboard to be giving to AO1 S_. Knowing that Monday morning I would not have any childcare. I phoned AO1 Sept 15, 00 telling him I had no childcare. He said I needed to do everything necessary to be here, and he would have to make me UA. I was UA until 9-20-00. I came in to plead my case in hoping someone would understand my situation. Still to no avail they put me on leave when my separation papers should have been done. My leave started Sept 20, 00 ending Oct 6, 00. I called Warrant Officer B_ on Sept 27, 00 to ask status of chit, he stated it was just going back to him for comments. Warrant Officer B_ stated I needed to come in the next day, I did not have any leave on the books. I had planned to come in the 28 th , my car was stolen on the 28 th . They stole my baby’s car seat. On Oct 11 I returned to work and was taken to security for being UA. Chief W_ informed me on Oct 11 that I popped positive for drugs. Oct 12 AO1 had my legal paperwork ready for me to sign. AO1 stated the next day he would know when my Xoi and mast would be. Fri Oct 13 he said he did not get the call.
Chit was not submitted.


 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant's DD Form 214
Two pages from Applicant's service record not previously available to the board.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     971006 - 971124  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 971125               Date of Discharge: 011019

 Length of Service (years, months, days):

         Active: 03 10 25 (does not include lost time)
         Inactive: None

 Age at Entry: 26                          Years Contracted: 4

 Education Level: 12                        AFQT: 37

 Highest Rate: AN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF                  Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: AFSM, SSDR, NER, NATO Medal, MUC

 Days of Unauthorized Absence: 140

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly 3630620.

 Chronological Listing of Significant Service Events :

971005   Applicant signed DD Form 1966/3 regarding transfer of custody of minor child.
000915:  Applicant to unauthorized absence 0545, 000915.

 000920:  Applicant from unauthorized absence 1100, 000920 (5 days/surrendered on board USS John F. Kennedy CV 67).
001005:  Applicant to unauthorized absence 0545, 001005.

001106:  Applicant declared a deserter.

 010211:  Applicant from unauthorized absence 0600, 010211 (129 days/surrendered TPU Jacksonville, FL).

010724:  Summary Court-Martial.
         Charge I: violation of the UCMJ, Article 86 (3 specs):
         Specification 1: Unauthorized absence from 000915 until 000920. Specification 2: Unauthorized absence from 001005 to 001011.
         Specification 3: Unauthorized absence from 001014 to 000211.
         Charge II: violation of the UCMJ, Article 112A (3 specs) Wrongful use of marijuana.
 Finding: to Charge I and II and the specifications thereunder, guilty.
          Sentence: Forfeiture of $347.60, confinement for 25 days, reduction to AR.
         CA action 010803: Sentence approved and ordered executed.

010724:  Applicant to confinement.

010813:  Applicant from confinement.

010823:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to drug abuse. [Extracted from supporting documents submitted by the Applicant.]
010823:  Applicant advised of her 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. [Extracted from supporting documents submitted by the Applicant.]
011019:  DD Form 214: Applicant discharged under other than honorable conditions by reason of misconduct due to drug abuse (use) authority: NAVMILPERSMAN, Article 1910-146.

The Applicant’s Discharge Package is missing from her service record. The Applicant
provided the Board with a copy of her Administrative Separation Processing Notice –
Administrative Board Procedure Documentation (2 pages).

 PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 011019 under other than honorable conditions for misconduct due to drug abuse (use) (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 used illegal drugs. Drug abuse warranted processing for separation, normally under other than honorable conditions. The Applicant’s service record is marred by a Summary Court-Martial for wrongful use of marijuana (3 specs), absence without leave (2 specs) and absence without leave in excess of 30 days (1 spec). These violations of the UCMJ triable by court-martial could have resulted in a Bad Conduct Discharge and confinement up to 1 year.

The Applicant states she began using marijuana because she “ became depressed because [she] did not have any child care.” The Board found that the Applicant’s age, education level, and test scores qualified her for enlistment. In addition, at the time of her enlistment, the Applicant signed documentation regarding the transfer of custody of her minor child. This documentation stated she (the Applicant) understood she may not take permanent custody of her minor child during her first enlistment on active duty and that if she should take custody of her minor child she may be discharged. There is no evidence in the official record, nor did the Applicant provide any certifiable documentation that there was any impropriety during her enlistment concerning a lack of Command support, nor is there any evidence that the Applicant had requested separation due to parenthood or had made any effort to comply with the Navy’s Family Care Plan. It must be noted that non-compliance with the Navy’s Family Care Plan does not equate to mandatory separation processing. In this case, it was the Applicant’s misconduct that caused her to be administratively processed for separation. The Applicant’s misconduct clearly reflects her disregard for the requirements of military discipline and demonstrated she had no potential for further service. The Applicant’s discharge characterization accurately reflects her service to her country. A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a Sailor. The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her disobedience of the orders and directives that regulate good order and discipline in the naval service, and falls far short of that required for an honorable characterization of service. An upgrade to honorable would be inappropriate. It must be noted that most Sailors serve honorably and well and therefore earn honorable discharges. In fairness to those Sailors, Commanders and Separation Authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. Although all of the pertinent documentation was not available for the Board’s consideration, the Board presumed regularity in the conduct of government affairs and determined that the discharge was proper and equitable. The Applicant did not provide any substantial creditable evidence, that the discharge was wrong or unfair . Relief denied.

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.

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 additional documentation to support any claims of post-service accomplishments at that time. 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), Change 33, effective 16 Jul 2001 until Present, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - Drug Abuse.

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 " afls14.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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