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NAVY | DRB | 2003_Navy | ND03-00009
Original file (ND03-00009.rtf) Auto-classification: Denied


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

ex-EM1, USN
Docket No. ND03-00009

Applicant’s Request
The application for discharge review, received 20020925, requested the reason for the discharge be changed to involuntary. The Applicant requested 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 20030828. 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: HONORABLE/PARENTHOOD OR CUSTODY OF MINOR CHILDREN, authority: NAVMILPERSMAN, Article 1910-124 (formerly 3620215).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. I am requesting a change of my Enlisted Separation Code to Involuntary Discharge Code GDG (Parenthood of Minor Children) from a voluntary code of KDG. I am requesting this change due to the fact that I was inadequately and improperly counseled in preparation for my discharge. My justification is documented below.

2. Enclosure (1) documents the dissolution of my marriage to D_ L_ on September 20, 2001. Per the custody agreement of Encl (1) "The Husband shall have sole custody of the minor children". Custody was granted based upon the courts assessment that placement with me was in the best interest of my children.

3. The unexpected dissolution of my marriage required that I take decisive action to secure continuing childcare arrangements for my minor children. I pursued alternate childcare arrangements from my estranged spouse and the paternal and maternal grandparents of my minor children. Enclosures (2) through (6) document my inability to get childcare assistance to guarantee my deployability. My failure to find childcare support resulted in a declaration that I could not comply with the requirements of Encl (6). As a result of this I was counseled on several occasions. Encl (7) includes a variety of counseling sheets submitted to document the negative impact that my unexpected divorce was having on my career. Eventually my command pursued an administrative separation that was denied. Since I was acting in what I felt was in the best interest of my children, I reluctantly requested a discharge. This would, based upon counseling, resolve both my childcare issues and the needs of the Navy.

4. The evaluations of Encl (8) show that I was a dedicated sailor who took pride in my job who would have happily made a career out of naval service. I was driven by my circumstances to separate from the navy prior to my EAOS. I was not counseled about the differences between an involuntary discharge (GDG-custody of minor children) and a voluntary discharge (KDG-custody of minor children). The differences between a voluntary and an involuntary discharge are enormous. Being discharged with an enlisted separation code of KDG has only taken an unfortunate situation and made it worse. The lack of any other choice combined with the potential disciplinary action of my command did not present itself as a situation that I had a choice in. My situation can clearly be defined by the guidelines of Enlisted Separation Code GDG. I did not have an option to stay in the Navy since I became non-deployable when my divorce was finalized and my efforts to establish childcare failed. I am requesting that my enlisted separation code be changed to the involuntary code of GDG in accordance with Ref (a).

Thank you, (Applicant)



 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Certificate of Dissolution of Marriage/Certificate of Change of Name – Date of Judgment Sep 20, 2001
 Separation Agreement Sep 20, 2001 (3 pages)
2 Statements of D_ L_ concerning being unable to care for her children
Statement of Grandparents, E_ & K_ P_, dtd Aug 12, 2001 concerning child care
Statement of Applicant’s Father, J_ L_, dtd Aug 19, 2001 concerning child care
Statement of Applicant’s Mother, A_ C_, undtd, concerning child care
Applicant’s Family Care Plan Certificate dtd Aug 8, 2001 (4 pages)
Record of Counseling dtd Aug 14, 2001
Administrative Counseling/warning dtd Aug 14, 2001
OIC, Historic Ship NAUTILUS (SSN 571), discharge recommendation, dtd Sep 24, 2001
Port Services Officer, NAVSUBBASE, New London, performance information, dtd Jan 29, 2001
Evaluation Report & Counseling Record (5 reports)
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     950418 - 950424  COG
         Active: USN                        950425 - 970731  HON

 Period of Service Under Review :
Date of Enlistment: 970801               Date of Discharge: 011228

 Length of Service (years, months, days):

         Active: 04 04 28
         Inactive: None

 Age at Entry: 22                          Years Contracted: 6 (13 months extension)

 Education Level: 13                        AFQT: 94

 Highest Rate: EM1

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4.2 (4)     Behavior: 3.8 (4)                 OTA: 3.86

 Military Decorations: None

 Unit/Campaign/Service Awards: NAM(2), NUC, GCM(2), NEM, NDSM, AFEM, SSDR(2)

 Days of Unauthorized Absence: None

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

HONORABLE/PARENTHOOD OR CUSTODY OF MINOR CHILDREN, authority: NAVMILPERSMAN, Article 1910-124 (formerly 3620215).

 Chronological Listing of Significant Service Events :

970801:  Reenlisted for 6 years onboard USS ANNAPOLIS (SSN 760).

 010814:  Retention Warning: Advised of deficiency (inability to secure appropriate child care arrangement due to inability to arrange long term routine daycare and inability to comply with the Navy Family Care Plan as a single parent), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.      

010814:  Applicant requested discharge under the basis of convenience of the Government – single parenthood due to inability to comply with the Department of the Navy’s Family Care Plan.
010815:  Family Care Plan Certificate: Applicant stated that he is unable to comply with the Navy's policy for dependent care.

010925:  Applicant notified of intended recommendation for discharge with a least favorable characterization as general (under honorable conditions by reason of convenience of the Government due to parenthood.
010926:  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 make a statement and the right to obtain copies of the documents used to support the basis for the separation.

010924:  OIC, HS NAUTILUS (SSN 571) recommends Applicant for separation due to non-compliance with the Department of the Navy Family Care Plan.
011002:  Commanding Officer, Naval Submarine Base New London, recommended discharge with an Honorable by reason of convenience of the Government due to parenthood or custody of minor children. Commanding Officer’s comments (verbatim): “Enclosure (1) discusses EM1 L_’s (Applicant) marginally adequate family care plan while assigned to HS NAUTILUS and his imminent return to sea duty. After appropriate counseling regarding dependent care and his military responsibilities, EM1 L_ (Applicant) continues to be unable to make or ensure proper dependent care arrangements and is unable to comply with the requirements of the dependent care certificate. The Mother of EM1 L_’s (Applicant) children, Ms. L_, is unable to care for their children and states in part, “…..at the present time I am unable physically or emotionally to take 100% care of my children…” As revealed in enclosures (8) through (13), EM1 L_ (Applicant) has diligently tried to find childcare without success. He is militarily unsuitable for retention due to his failure to ensure proper dependent care. I recommend that EM1 L_ (Applicant) be separated from the Naval service with characterization of service as honorable.

011107:  CNPC disapproved Applicant’s discharge.

011108:  Applicant requested to CNPC reconsideration of his request for discharge due to parenthood.

011114:  OIC, HS NAUTILUS, requested reconsideration and recommended EM1 L_ (Applicant) be separated due to parenthood.

011116:  CO, Naval Submarine Base New London, endorsed OIC, HS NAUTILUS’ recommendation for EM1 L_ (Applicant)’s discharge.

011218:  CNPC directed the Applicant's discharge with type warranted by service record by reason of convenience of the Government due to parenthood or custody of minor children, with a separation code of “KDG”.

011228:  Applicant discharged with an Honorable due to parenthood or custody of minor children.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was voluntarily discharged on 20011228 with a discharge characterization of honorable by reason of convenience of the Government due to parenthood or custody of minor children (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).

In the Applicant’s issues 1 and 2, the Board determined the reason for discharge and the separation code were properly assigned. The Applicant requested separation from military service on two occasions. After the first request for separation CNPC attempted to retain the Applicant by any possible means. The Applicant and his chain of command made a second request for separation to included evidence that the Applicant had secured employment at Duke Power beginning in December 2001. CNPC complied with the Applicant’s request and approved his separation from military service in accordance with Navy regulations. Relief based on issues 1 and 2 is denied.

In the Applicant’s issue 3, the Board determined that this issue has no merit. The Applicant states he reluctantly requested a discharge as a result of command counseling. There is no evidence that the Applicant was forced to seek separation from military service or that he received inadequate counseling by his chain of command. CNPC attempted to retain the Applicant by denying his first request for separation. The Applicant and his chain of command were persistent in their attempt to obtain the Applicant’s discharge from the military. There is clear evidence that the Applicant wanted to end his military career to seek civilian employment at Duke Power. Relief based on this issue is denied.

In the Applicant’s issue 4, the Board determined that this issue has no merit. The Applicant states he was not aware of the differences between a voluntary and involuntary discharge. The Board cannot confirm whether the Applicant was aware of the differences between a voluntary and involuntary discharge or that inadequate counseling may have been the root cause. The Board can confirm, however, that the Applicant requested separation through two personal letters to CNPC, which was approved against the desires of CNPC. Relief based on this issue is denied.

 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 27 Aug 2001 until 21 Aug 2002, Article 1910-124 (previously 3620215), Separation by reason of Convenience of the Government - Parenthood.
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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