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NAVY | DRB | 2005_Navy | ND0500444
Original file (ND0500444.rtf) Auto-classification: Denied


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

ex-OSSA, USN
Docket No. ND05-00444

Applicant’s Request
The application for discharge review was received on 20050118. 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 20050428. 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)/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

 “1. Clemency is warranted because it is an injustice for me to continue to suffer the adverse consequences of a bad discharge. I was very proud of my military service. I worked hard and was very eager to learn and advance. The circumstances surrounding my discharge were very unfair. When people ask me about my service I am embarrassed and unwilling to talk about it because of the discharge I received.

2. My average conduct and efficiency ratings/behavior and proficiency marks were good. I recieved very high performance evaluations at all three of my commands. My discharge was based soley on one isolated incident. During that period three evaluations were performed in a very short time leading up to my discharge. Prior to those evaluations, I was in a must promote status and a huge asset to the ship.

3. I received awards and decorations. I received a good conduct medal while serving on the USS Cimarron. Also, I received a letter of appreciation from Commander H_ while serving on the USS Salvor.

4. My record of promotions showed I was generally a good service member. I advanced very quickly. When I enlisted I did not choose a school because I was not sure what I wanted to do. I went to apprenticeship school directly after boot camp. I finished in the top 3 of my class and was advanced to seaman. When I reported to my ship, the USS Salvor, I was able to take the third class exam for OS3. I passed the exam but not enough to be advanced. I became OSSN B_ ( Applicant ). The next exam I advanced to OS3. I was preparing to take the OS2 exam prior to being discharged.

5. I was so close to finishing my tour that it was unfair to give me a bad discharge. I was supposed to be discharged from the military on July 19, 1997. I was discharged 4 months prior to completing my tour.

6. I have been a good citizen since discharge. After being discharged I moved back to New York and began working at an accounting firm while attending community college. I worked there for approximately 6 years. I got married in September 2001 and currently have 3 children. My husband was transferred to Upstate New York where we bought a house together and currently live. I am 1 class away from receiving my Associates degree in accounting and plan to continue on with my education. I am currently working from home while caring for my children.

7. My ability to serve was impaired by my youth and immaturity. I joined the Navy when I was 18. I began dating someone on board my ship. The captain had a no dating policy. I was a single parent and this person promised to take care of me and my son. I was blinded by the fact that I actually thought this person cared about me. I should have ended the relationship but I was unable to at the time. After being discharged we stayed together for a short period of time. He became physically abusive and I told him we could no longer be together.

8. My ability to serve was impaired because of child care problems. My ship was always out to sea. My son would stay at the babysitter’s house for weeks at a time. He began having behavioral problems. I took him to the doctor on base and they told me that I should not go underway with my ship. I spoke to the appropriate people on my ship and they agreed that for the first week I should stay behind. When the ship returned they were in port for one day and forced me to go back out with them for the second week. My son was again forced to stay with the babysitter. I was very upset with their decision. It was very difficult for me to do my work properly as my son was counting on me. I was stationed in Hawaii and I didn’t have any family support. The only person I could confide in was the same person I was told I could no longer date.

9. I had tried to apply for a hardship discharge but was unfairly told to forget it. After my son began having trouble I asked for an early release from active duty. I was told I would have to finish my 45 days restriction and then he would consider it. Prior to finishing restriction I was told I was being discharged with a general discharge under honorable conditions.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Statement from Applicant, undated
Letter of appreciation, dated December 1, 1993
Orange County Community College transcript
Certification of Live Birth, dated February 3, 1995
Certificate of Live Birth, dated May 15, 2001
Certified Transcript of Birth, dated September 23, 2003
Applicant’s DD Form 214
Ten pages from Applicant’s service record
Letter from Applicant, dated February 24, 2005

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     930520 - 930713  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 930714               Date of Discharge: 970314

 Length of Service (years, months, days):

         Active: 03 08 01
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 73

 Highest Rate: OS3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.90 (4)             Behavior: 3.90 (4)                OTA: 3.85 4.0 evals
 Performance: 2.75 (4)             Behavior: 1.50 (4)                OTA: 2.48 5.0 evals

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, GCM

 Days of Unauthorized Absence: None

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

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

 Chronological Listing of Significant Service Events :

960520:  Letter of counseling/w arning: Advised of deficiency, (verbatim): (1. It has come to my attention that you have entered into an unduly familiar relationship with another CIMARRON crew member. 2. Your conduct, is in direct violation of CIMARRONINST 5370.2 and must stop immediately. 3. This letter is addressed to you as a corrective measure. You are advised, however, in the future you will be expected to exercise greater care in the performance of your duties in order to measure up to the high standards expected in CIMARRON. 4. Failure to terminate this unduly familiar relationship, while both of you are CIMARRON crew members, will result in administrative processing for violation of the Uniform Code of Military Justice. 5. Conduct which constitutes fraternization is not excused or mitigated by a subsequent marriage between the offending parties. 6. Assistance in meeting the requirements of this letter is available from you chain of command. Should you have any questions concerning the contents or direction of this letter, contact me immediately.)

 970125:  NJP for violation of UCMJ, Article 92 (3 specs): Failure to obey an order or regulation.
Award: Forfeiture of $150 per month for 2 months, restriction and extra duty for 45 days, reduction to E-3. Appealed 970128. Appeal e record.
970303:  NJP for violation of UCMJ, Article 92: Failure to obey an order or regulation.
         Award: Reduction to E-2. No indication of appeal in the record.
970310:  Applicant notified of intended recommendation for discharge by reason of misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct as evidenced by all punishments under the UCMJ in your current enlistment. The least favorable characterization of service in your case is General (under honorable conditions).
970313:  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

970314:  DD Form 214: Applicant discharged general (under honorable conditions) by reason of misconduct due to a pattern of misconduct, authority: NAVMILPERSMAN, Article 3630600.

970401:  Commanding Officer forward discharge information to Chief of Naval Personnel (PERS 83).

Complete discharge package unavailable

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19970314 with a general (under honorable conditions) for misconduct due to a pattern of misconduct (A). After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C). The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (D).

Issue 1 through 5. Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question. No such impropriety or inequity is evident during the Applicant’s enlistment. The Applicant contends in various ways that her record of service warrants an upgrade to an honorable discharge. When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. A general discharge is warranted for behavior not sufficiently meritorious to warrant an honorable discharge. T he Applicant’s service was marred by two nonjudicial punishment proceedings for violations of Article 92 of the UCMJ for violating an order or regulation. Although the record is incomplete, the evidence indicates that the Applicant engaged in fraternization after repeated counselings by her chain of command that such relationships were forbidden. The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her willful failure to meet the requirements of her contract with the U.S. Navy. Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of her characterization of service. Relief is not warranted.

Issue 6. 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 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 could 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. The Board received and considered all of the Applicant’s submissions, including her college transcripts and the birth certificates of her children. As of this time, the Applicant’s post-service conduct has been insufficient to mitigate her misconduct while in the Naval service. Relief denied.

Issues 7 through 9. The Applicant contends her disciplinary problems were the result of stress caused by being a single parent. The NDRB recognizes that serving in the U.S. Navy is challenging. Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country. It must be noted that many members of the Navy endure hardships similar to those of the Applicant. It must further be noted that the vast majority of those members do not commit misconduct as a result of their problems. Despite their hardships, these sailors are still able to serve honorably and therefore earn their honorable discharges. In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. The NDRB found that the Applicant's service was equitably characterized. 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. The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to her discharge at that time. 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 14, effective 03 Oct 96 until 11 Dec 97), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – A PATTERN OF MISCONDUCT.

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

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

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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