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NAVY | DRB | 2005_Navy | ND0501205
Original file (ND0501205.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-HN, USN
Docket No. ND05-01205

Applicant’s Request
The application for discharge review was received on 20050712. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance discharge review before a traveling panel closest to Denver, CO. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area. The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing. The Applicant designated Disabled American Veterans as the representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20060131. 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 unanimous that the discharge shall change to: Honorable by reason of Parenthood or Custody of Minor Children.
PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the attached letter:

 “Naval Discharge Review Board,

I, R_ C_ (Applicant) (1-23-1983), am writing this letter to support my case to upgrade my discharge from the U.S. NAVY. When I joined the Navy, it was my every intention to complete my contract. At the beginning of my enlistment, I shared custody of my daughter A_ C_ with her mother S_ T_. I paid child support to S_ for the amount of $246.00 per month. As it turned out, S_ was busy doing drugs and eventually lost custody of my daughter, who had to spend one week in a foster home before the court gave temporary custody to my parents, R_ and R_ C_. The court later found out my parents were unable to parent my daughter and the case was causing a hardship on them. The only solution was for me was to return home and parent my daughter on a full-time basis. I currently receive no child support from S_, and probably never will.

I served in Iraq for two tours with 1 st Platoon, Charlie Company, 1 st Battalion 5 th Marines, as a Corpsman. I enjoyed my military career very much, but unfortunately it was cut short. My daughter’s case was the sole reason for my early discharge. I currently have full custody and enjoy every minute I spend with her.

I am a full time student at Aims Community College. I work part time at Kohl’s to help pay for school. I hope to one day become a Registered Nurse, and I am currently on the waiting list for the Nursing Program. I am recently engaged to N_ F_, with plans for a wedding in May of 2006. I have completed the course to become a Certified Nurses Aid, and I am therefore waiting for my license so I can find a better job.

College is of up most importance to me and I struggle to pay for tuition and books. I am a naturalized U.S. Citizen, no member of my family has ever received a college education and I hope to be the first. Please help me to receive my education benefits through the Montgomery G.I. Bill.

Sincerely,
[signed]
R_ C_(Applicant)”


Additional issues submitted by Applicant’s counsel/representative (Disabled American Veterans):

“Dear Chairperson:

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 September 19, 2001 to January 28, 2005 at which time he was discharged due to Parenthood or Custody of Minor Children.

The FSM contends the current discharge is inequitable when reviewed against the character of his service as a whole and seeks relief so he may obtain his education benefits through the Montgomery GI Bill.

This service believes the current General discharge to be not only un-just but improper. When you take the time to review the evidentiary record you will see the history of a combat medic with two combat tours with the 1 st Battalion 5 th Marines. Who on return from Iraq, was given a single non-judicial punishment for under-age drinking. His subsequent discharge was really due to the need for a full time parent of his minor child, not his one-time offense of underage drinking. The later of which was thrown into the discharge in an attempt to justify the General discharge. When the record is evaluated by a review of the FSM’s combat service, high service marks, and the true reason for discharge it will be realized that this discharge is improper, and an Honorable discharge warranted to correct this injustice.

This creates a need for a review of the application of the standard, for the Board to determine that the applicant’s discharge was improper. The Board will determine which reason for discharge should have been assigned based upon the facts and circumstances before the Board, including the service regulations governing the reasons for discharge at that time, to determine whether relief is warranted. See, SECNAVIST 5420.174 D, Sect. 407, part 3.

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:
Applicant’s DD Form 214 (Member 4)
VA Form 21-22
Ltr from Disabled American Veterans, M_ J. S_, National Service Officer, dtd July 5, 2005
Applicant’s daughter’s Birth Certificate from the State of Colorado
Court Order, District Court, Weld County CO, J_ H_, District Court Judge, dtd September 10, 2004 (3 pages)
Character Reference ltr from D_ M. W_, Assistant County Attorney, Weld County, Colorado, dtd August 24, 2004 (2 pages)
Action No. 03-JV-888, unsigned, undated
Ltr from L_ M. H_, Legal Assistant, dtd February 11, 2005 (4 pages)
Evaluation Report Counseling Record, dtd January 18, 2005
Presidential Unit Citation, dtd November 3, 2003
Applicant’s Payroll Check stub from department store Kohl’s, dtd August 5, 2005
Certificate for completion of Nurse Aide Program, dtd May 5, 2005
Character Reference ltr from P_ A. H_, RN, BSN, Aims Community College, dtd May 6, 2005
Nursing Program Wait List ltr from J_ H_, MA, RN CNS, Director of Nursing Education Program, Aims Community College, dtd May 16, 2005
Transcript from Aims Community College, Summer Semester
Ltr from Applicant, dtd November 22, 2005
Applicant’s DD Form 214 (Member 4)
Service Record Documents (10 pages)
3 pictures of Applicant’s daughter

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20010421 – 20010918               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20010919             Date of Discharge: 20050128

 Length of Service (years, months, days):

         Active: 03 04 10
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence:    None
         Confinement:                       None

 Age at Entry: 18

Years Contracted: 4 (12 months extension)

 Education Level: 12                                 AFQT: 48

 Highest Rate: HN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.50 (4)             Behavior: 3.25 (4)                         OTA: 3 .42

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Combat Action Ribbon, Presidential Unit Citation, Sea Service Deployment Ribbon (2 nd ), Global War On Terrorism Expeditionary Medal With Eagle, Globe And Anchor, Global War On Terrorism Service Medal, National Defense Service Medal.


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

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

Chronological Listing of Significant Service Events :

020404:  NJP for violation of UCMJ, Charge 1, Article 92: Underage Drinking.
 Award: Forfeiture of $552.00 pay per month for 1 month, restriction and extra duty for 45 days (suspended for 6 months), oral reprimand. No indication of appeal in the record.
020404:  Retention Warning: Advised of deficiency (Article 92: Disobeying a lawful general order—Underage Drinking.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 041001:  Family Care Plan Certificate: Applicant indicated that he unable to comply with the Navy's policy for dependent care.

041021:  Counseling: Applicant notified that he is being recommended for administrative separation form the naval service for failing to make and maintain an adequate Family Care Plan IAW OPNAVINST 1740.4.
041209:  Commanding Officer, 1 st Battalion 5 th Marines, recommended to Commander, Naval Military Personnel, that the Applicant be discharged with an honorable discharge by reason of Convenience of the Government - Parenthood. Commanding Officer’s comments: “I recommend that HN C_ (Applicant) be separated with an honorable discharge as his service to date has been noteworthy. His family situation that requires his discharge is unfortunate as he had a bright future in the Navy however, this command recognizes his primary responsibility to his children.”
041221:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as General (under honorable conditions) by reason of Convenience of the Government – Parenthood.

 050113:  COMNAVPERSCOM, directed the Applicant’s discharge with type warranted by service record by reason of parenthood or custody of minor children.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20050128 by reason of convenience of the government due to parenthood or custody of minor children (A) with a service characterization of general (under honorable conditions). 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 (B and C).

 Under applicable regulations, separations based on parenthood or custody of minor children should be honorable unless a general (under honorable conditions) or an entry-level separation is warranted. A general discharge may be warranted if the Applicant’s service contains records of nonjudicial punishments (NJP), disciplinary actions, or if other significant negative aspects existed, which outweighed the positive aspects of the member’s period of service. Additionally, a general discharge may be warranted if the Applicant’s performance evaluation averages are not sufficient to merit an honorable discharge. The Applicant’s record does contain evidence of one nonjudicial punishment for a violation of UCMJ Article 92, failure to obey order or regulation by consuming alcohol while under the age of 21. However, the Applicant’s service after his NJP was sufficient to merit an honorable discharge. Specifically, the NDRB noted that the Applicant deployed with the United States Marine Corps in support of Operation Iraqi Freedom on two occasions. During these deployments, the Applicant distinguished himself by virtue of providing outstanding medical support to battle wounded Marines while under fire as a line HM. Based upon the Applicant’s conduct in support of Operation Iraqi Freedom, the Board unanimously concluded that the Applicant’s characterization of service was inequitable. By a vote of 5 to 0, the NDRB voted to change the Applicant’s characterization of service to Honorable. Relief granted.

The following is provided for the edification of the Applicant. The NDRB has no authority to provide additional review of this case. The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, if he desires further review of his case.

Pertinent Regulation/Law (at time of discharge)

 A. The Naval Military Personnel Manual, (NAVPERS 15560C, re-issued October 2002, effective 22 Aug 2002 until 19 May 2005, Article 1910-124 (previously 3620215), Separation by reason of Convenience of the Government - Parenthood.
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 .


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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