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NAVY | DRB | 2003_Navy | ND03-01278
Original file (ND03-01278.rtf) Auto-classification: Denied


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

ex-FC2, USN
Docket No. ND03-01278

Applicant’s Request
The application for discharge review was received on 20030724. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record discharge review. The Applicant did not list any representative on the DD Form 293. Subsequent to the submission of DD Form 293, the Applicant obtained representation from Disable American Veterans.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041229. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety in the characterization of the Applicant’s service was discovered by the NDRB. However, the Board did find an inequity and voted unanimously that the character of the discharge shall change. The discharge shall change to: HONORABLE/PARENTHOOD OR CUSTODY OF MINOR CHILDREN, authority: NAVMILPERSMAN, Article 3620215.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1. “DODD 133228
         E4.3.3
                  4.3.3.1
                  4.3.3.1.2
                  4.3.3.2.2”

Additional issues submitted by Applicant’s counsel/representative (DISABLED AMERICAN VETERANS):

 2. “After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current General Under Honorable Conditions discharge to that of Honorable.

The FSM served on active service from November 28, 1990 to January 23, 1996 at which time he was discharged due to Parenthood or Custody of Minor Children.

It is the FSM’s contention and / or request that relief be granted based on section E4.3.3 of the Department of Defense Instruction 1332.28. Maintaining that although he had two incidents in 1992, the remainder of his service, and the two years service from 1990 to 1992 were of honorable nature and course allowing for an upgrade of the current discharge, including the point that the discharge was for parenthood / custody of minor children and not for reason of misconduct.

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174C.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the applicant.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Navy Achievement Medal citation
Ltr from Applicant dtd 030713


PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: None
         Active: USN                        901121 - 901122  HON

 Period of Service Under Review :
Date of Enlistment: 901123               Date of Discharge: 960123

 Length of Service (years, months, days):

         Active: 05 02 01
         Inactive: None

 Age at Entry: 21                          Years Contracted: 4 (24 month extension)

 Education Level: 12                        AFQT: 72

 Highest Rate: FC2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.90 (6)    Behavior: 3.86 (6)                OTA: 3.86

 Military Decorations: None

 Unit/Campaign/Service Awards: NAM, B’E’R (2), NDSM, GCM, SSDR

 Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/PARENTHOOD OR CUSTODY OF MINOR CHILDREN, authority: NAVMILPERSMAN, Article 3620215.


Chronological Listing of Significant Service Events

 :

920319:  NJP for violation of UCMJ, Article 123a: Spec 1: With intent to defraud wrote a check for $50.00. Spec 2: With intent to defraud wrote a check for $440.61.
         Award: RIR to E-3, forfeiture of $150 per month for 1 month(s), susp. For six months. No indication of appeal in the record.

920724:  NJP for violation of UCMJ, Article 92: Fail to obey a lawful order.
         Award: RIR, susp. 6 mos. Forfeiture of $32.18 per month for 1 month(s). No indication of appeal in the record.
951125:  Counseled on providing D ependent Care, notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

960119:  Applicant notified of intended recommendation for general (under honorable conditions) discharge by reason of convenience of the Government due to parenthood or custody of minor.
960119:  Applicant advised of rights and having elected not to 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.

960123:  Commanding Officer directed Applicant’s General (Under Honorable Conditions) discharge by reason of convenience of the Government due to parenthood or custody of minor children. [Extracted from CO’s letter of 960129.]

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19960123 with a general (under honorable conditions) discharge 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 but inequitable (C and D).

Issues 1-2. The Applicant lists paragraphs of DODD 1332.28 as an issue. These paragraphs indicate that when a service member’s discharge is otherwise proper and equitable at the time of issuance, relief may be granted based on the member’s service record in addition to his quality of service (4.3.3.1) as evidenced by his awards and decorations (4.3.3.1.2) and his family and personal problems (4.3.3.2.2). Nonetheless, the Board determined that the Applicant’s discharge was not equitable at the time of discharge. A review of Applicant’s records indicated an honorable discharge was warranted. The Applicant served almost four years without incident after his last nonjudicial punishment and the Applicant’s performance and behavior marks for his entire period of service, which form the primary basis for determining the character of his service, were above the standard required for an honorable discharge. Relief granted.

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. 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), effective 22 Jul 94 until 02 Oct 96, Article 3620215, SEPARATION OF ENLISTED PERSONNEL BY REASON OF CONVENIENCE OF THE GOVERNMENT ON THE BASIS OF PARENTHOOD.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

 D Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .

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 “ http://Boards.law.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:

                  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


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