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NAVY | DRB | 2005_Navy | ND0500279
Original file (ND0500279.rtf) Auto-classification: Denied


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

ex-ICFA, USN
Docket No. ND05-00279

Applicant’s Request
The application for discharge review was received on 20041210. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record review. The Applicant did not list any representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20050316. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, an inequity in the characterization of the Applicant’s service was discovered by the NDRB. The Board’s vote was 3 to 2 that the character of the discharge shall change. The discharge shall change to: HONORABLE/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

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 on one isolated incident in 30 months of service with no other adverse action.”

“2. My discharge is causing suffering due to adverse consequences of a bad discharge.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from Applicant, undated (2 pages)
Applicant’s DD Form 214
Montgomery GI Bill Statement
Letter from Applicant to Legal Department, USS MCKEE (AS 41), undated
Navy Dependent Care Certificate (2 pages)
Evaluation Extension Report from Commanding Officer dated February 29, 1996
Evaluation Report & Counseling Record
Enlisted Performance Record (2 pages)
Commanding Officer Recommendation for Separation (3 pages)
Reference Letter R_ H_, Vernon College, dated November 4, 2004
Letter of Recommendation from Pastor J_ H_, dated September 13, 2004 (no signature) (2 copies)
Wells Fargo Home Mortgage Statement
Wells Fargo Account Statement
Letter to BCNR from Applicant dated July 1, 2004 (2 pages)
Employment Reference Letter dated June 24, 2004
Reference Letter from J_ B_, dated July 1, 2004
Reference Letter from Applicant’s sister D_ V. C_, dated July 1, 2004
Criminal Record Check dated September 10, 2004
Reference Letter from D_ W_, undated
Reference Letter from S_ P_, dated November 17, 2004

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     930818 - 930825  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 930826               Date of Discharge: 960316

 Length of Service (years, months, days):

         Active: 02 06 21
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 11                        AFQT: 72

 Highest Rate: ICFA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.60 (1), 3.00 (1)  Behavior: 3.60 (1), 3.00 (1)     OTA: 3.60, 3.00

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: 4

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

950405:  NJP for violation of UCMJ, Article 86: UA on or about 950303 until on or about 950307 (4 days/S), violation of UCMJ Article 123a: (2 Specifications), Uttering bad checks on or about 950120.
         Award: Forfeiture of $427.00 pay per month for 1 month, restriction and extra duty for 15 days, reduction to E-1 (all punishment suspended for 6 months). No indication of appeal in the record.

950417:  Retention Warning: Advised of deficiency (Violation of UCMJ, Article 86, Unauthorized absence on or about 950303 until on or about 950307 (4 days/S); and violation of UCMJ, Article 123a (2 Specifications), Uttering bad checks on or about 950120 to MCRD, San Diego, CA), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
        
960111:  Retention Warning: Advised of deficiency (You have submitted a Dependent Care Certificate Form (DON) OPNAV 1740/1(6/82) indicating you cannot comply and you are unable to designate someone who will care for your child/children under circumstances delineated in paragraph 2 of the Dependent Care Certificate Form. Based on your failure to comply with requirements of the Dependent Care Certificate Form, you are not available for worldwide assignment), advised of consequences, and issued discharge warning.
        
960212:  Applicant notified of intended recommendation for discharge by reason of misconduct due to the commission of a serious offense and by reason of parenthood. Applicant notified that if discharged is approved, the least favorable characterization of service is under other than honorable conditions
960212:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights except the right to submit statement on own behalf either verbally or in writing and to obtain copies of the documents used to support the basis for the separation.
960220:  Commanding Officer recommended discharge general (under honorable conditions) by reason of misconduct due to the commission of a serious offense and parenthood.

960307:  BUPERS directed the Applicant's 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 19960316 with a general (under honorable conditions) 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, but inequitable (D and E).

Issue 1: The Applicant contends her discharge is inequitable because it was based upon one incident in 30 months of service. The Board, by a vote of 3-2, found that the Applicant’s characterization of service was inequitable at the time of issuance. The Board’s decision was based on the following considerations. The Applicant was awarded nonjudicial punishment (NJP) on 950405 for a violation of UCMJ Article 86, unauthorized absence of four days and for two violations of UCMJ Article 123a, uttering worthless checks. As a result, the Applicant received a retention warning and the punishment received from the NJP was suspended by the Commanding Officer for a period of six months and remitted without further action. The Applicant’s misconduct, while technically a serious offense, was not the trigger for her administrative processing. The Applicant’s inability to comply with a family care plan, nearly 10 months after the NJP, precipitated her administrative processing and notification of the intended recommendation for separation by reason of misconduct due to a commission of a serious offense and by reason of convenience of the government - parenthood. The Commanding Officer stated in his recommendation that, “[a]lthough the offenses for which she appeared at mast are considered to be serious, she has not incurred any additional misconduct, and the primary reason for processing is parenthood.” Furthermore, the Applicant’s Final Enlisted Performance Evaluation Averages were high enough to warrant an honorable discharge and under applicable regulations, the usual characterization of service for convenience of the government - parenthood separations is honorable. Taken as a whole, the evidence of record convinced the Board that the Applicant’s characterization of service should have been honorable. Relief granted.


 Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.
B. Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 123a, making, drawing, or uttering check, draft, or order without sufficient funds, 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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