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NAVY | DRB | 2004_Navy | ND04-00955
Original file (ND04-00955.rtf) Auto-classification: Denied

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

ex-ENFN, USN
Docket No. ND04-00955

Applicant’s Request
The application for discharge review was received on 20040527. 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 listed the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050201. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. 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 1910 - 142 (formerly 3630605).

 .



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

1. “My discharge was inequitable because it was based one isolated incident in 26 months of separation with no other adverse action due to this issue the narrative reason for separation was misconduct.

The discharge was also improper because the Applicant’s traffic tickets were written as civil service and I don’t understand what this means. This issue was reported on separation but it took place 23 months before separation date. However this was a civilian conviction that complied with my separation & I had already received a page 13 for counseling warning.

My discharge was only suppose to be based on my non-compliance because I didn’t have anyone to watch my child For the duty of the being on a ship I was told before I was separated that they didn’t have enough information to separate for non-compliance so they had to go through my record to find cases there were already closed and was charged for. I asked them to consider my disability but they did not want to wait for me to be seen by a Medical board

Once I was released I applied for disability and I was granted 20%. I am now waiting on an reevaluation and I was told by the VA it could take from 10-12 months.

I D_ G_ (Applicant) am asking that my character of service be changed from General (under honorable conditions) to Honorable. I am asking that misconduct not be used for the narrative Reason for separation. My separation should have been based on my non-compliance and or disability.

If I need to appear for a hearing to the government I will. But I have no counsel or representative.”

 The American Legion did not provide any issues.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Letter from Department of Veterans Affairs to Applicant, dated April 20, 2003
Thirteen pages from Applicant’s service record
Applicant’s résumé (2 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     991115 - 991207  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 991208                        Date of Discharge: 020813

 Length of Service (years, months, days):

         Active: 02 08 06
         Inactive: None

 Age at Entry: 17 Parental Consent                Years Contracted: 4

 Education Level: 12                                 AFQT: 43

 Highest Rate: ENFN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (1)             Behavior: 3.00 (1)                OTA: NFIR

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 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 :

000517:  NJP for violation of UCMJ, Article 92: Wrongfully having a male in a area designated for females only, violation of UCMJ, Article 128: Wrongfully striking another service member in the face with an open hand.
         Award: Forfeiture of $100 per month for 1 month, restriction and extra duty for 10 days. No indication of appeal in the record.
000517:  Retention Warning: Advised of deficiency (Poor military performance, to wit: assault and having a male in an area designated for females.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 010914:  Civil Conviction: General District Court (Traffic Division), Norfolk, VA for violation of no license/learner permit and disregard red light on 010808. Reduced to no operators license possession.
 Sentence: Fine $35.00 plus court costs.
011010:  Retention Warning: Advised of deficiency (Failure to conform to local, state, federal laws, military rules and regulations which resulted in one civilian conviction during your current enlistment. On 010914, you were tried and found guilty of having no license/learner permit, and disregarding a red light.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

020420:  Retention Warning: Advised of deficiency (Failure to comply with a U.S. Navy single sponsor/military couple with dependent/s policy in accordance with OPNAVINST 1740.4A and MILPERSMAN 1910-124.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
020430:  Family Care Plan Certificate: Applicant indicated that she unable to comply with the Navy's policy for dependent care.

020711:  Applicant notified of intended recommendation for discharge by reason of convenience of the government due to parenthood, misconduct due to the commission of a serious offense, and misconduct due to civil conviction with the least favorable characterization of service as general (under honorable conditions).
020711:  Applicant advised of 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.
020711:  Commanding Officer directed 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 20020813 with a general (under honorable conditions) character of service for misconduct due to commission of a serious offense (A and B). The Board presumed regularity in the conduct of governmental affairs (C). 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 (D and E).

Issue 1. The Applicant states her discharge was based on one isolated incident in “18 months.” Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline. A general discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. The Applicant’s service was marred by nonjudicial punishment proceedings for violations of Articles 92 and 128 of the UCMJ and a misdemeanor civil conviction. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider her discharge proper and equitable. Further, regarding the Applicant’s Narrative Reason for Separation, no other Narrative Reason for Separation could more clearly describe why the applicant was discharged. To change the Narrative Reason for Separation would be inappropriate. Relief denied.

The Applicant indicated she requested that her command consider her disability in her discharge and that she should have been discharged for parenthood. However, DoD disability regulations do not preclude a disciplinary separation. Such separations normally supersede disability separations, retirements or separations based on parenthood. Relief on this basis is not warranted.

The following is provided for the edification of the Applicant. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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 naval service. The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided sufficient documentation for the Board to consider. Relief 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. Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 31, dated 20 Feb 01, effective 25 Jan 01 until 21 Aug 02, 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 128, assault, if adjudged at a Special or General Court Martial

C. 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.

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

 E. 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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