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NAVY | DRB | 2005_Navy | ND0501283
Original file (ND0501283.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-AOAA, USN
Docket No. ND05-01283

Applicant’s Request
The application for discharge review was received on 20050727. The Applicant requested a documentary discharge review and that her characterization of service be changed to honorable. The Applicant did not designate a representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20060406. After a thorough review of all available 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 characterization of the discharge and reason for discharge shall not change. The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to the commission of a serious offense.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

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

“At the time of my separation process, I assumed that it was for parenthood reasons. Prior to any counseling for any conduct issues, I requested to be discharged for the issues that I had at that time with my children. As part of these requests, there were chits to see the captain for mast to discuss some of the parenthood issues. There were never any approvals for any of the requests; the reasons were that the parenthood separation was no longer in existence. During the mast, there were brief questions and I was told that my rank was being reduced for disrespect to my petty officer; I was under the impression that it was the only reprimand I was to receive. I would like to have my discharge upgraded because I feel that it was an unfair decision and my current discharge does not reflect my character or personality at all. I have just recently moved and cannot find the chits that I have to support my statements. If any of these is needed, I can send them in when they are unpacked. Thank you for your time and reply in this matter.”
Thank you N_ B_
[signed] N_ B_ (Applicant)


Documentation
The Applicant submitted the following additional documentation for the Board’s consideration in addition to the service and medical record:
Special Request/Authorization NAVPERS 1336/3, dated August 04, 1999 (2 copies)
Special Request/Authorization NAVPERS 1336/3, dated August 25, 1999 (2 copies)
Special Request/Authorization NAVPERS 1336/3, dated August 26, 1999 (2 copies)
Special Request/Authorization NAVPERS 1336/3, dated September 13, 1999 (2 copies)
Special Request/Authorization NAVPERS 1336/3, dated September 22, 1999
Letter from Applicant, dated August 21, 1999 (2 copies)
Referral from Navy Family Service Center dated September 17, 1999 (2 copies)
Letter from D_ A_, II, Esq. Legal Assistance Attorney, Naval Legal Assistance Office, Mid-Atlantic, dated September 20, 1999 (2 copies)
Letter from K_ M. B_, dated August 23, 1993 (2 copies)
Letter from K_ J. B_, dated August 19, 1999 (2 copies)
Letter from D_ V. F_, dated August 19, 1999 (2 copies)
Letter from M_ T. B_, dated August 24, 1999 (2 copies, unsigned)
Letter from Magistrate K. M. W_, Henrico County, Virginia, dated August 29, 1999 (2 copies)
Letter from G_ R_, Senior Social Worker (2 copies, undated)
Letter from S_ G_, dated October 4, 1999 (2 copies)
Letter from Applicant, dated October 19, 1999
Recommendation for Administrative Separation, dated September 30, 1999 (2 pages)
Letter from Applicant, dated August 09, 1999 (2 copies)
Special Request/Authorization NAVPERS 1336/3, dated August 21, 1999
Family Care Plan Certificate, dated August 21, 1999 (3 pages)
Applicant’s DD Form 214
Letter from Applicant, dated February 01, 2006
Special Request/Authorization NAVPERS 1336/3, dated August 29, 1997
Letter of Commendation, dated October 03, 1997
Evaluation Report & Counseling Record for the period of November 07, 1997 to January 22, 1998 (2 pages)
Evaluation Report & Counseling Record, dated April 15, 1998 (2 pages)
Evaluation Report & Counseling Record for the period of July 16, 1998 to July 15, 1999 (front page, 2 copies)
Evaluation Report & Counseling Record (back page signed July 22, 1998)
Evaluation Report & Counseling Record (back page signed July 26, 1999)
Evaluation Report & Counseling Record for the period of July 16, 1999 to November 15, 1999 (unsigned, 02 pages)
Family Care Plan Certificate, dated April 10, 1998 (3 pages)
Administrative Remarks NAVPERS 1070/613, dated April 10, 1998
Medical Evaluation from NMCP, Portsmouth, VA, dated May 13, 1998
Medical Disposition Chit, dated October 07, 1998
Medical Evaluation from OB/GYN Department, Branch Medical Clinic, Naval Station, Norfolk, VA, dated April 16, 1999
Appointment Verification letter from OB/GYN Department Sewell’s Point Branch Medical Clinic Norfolk, VA, dated April 16, 1999
Medical Evaluation from OB/GYN Department, Branch Medical Clinic, Naval Station, Norfolk, VA, dated April 29, 1999
Letter from Applicant, dated February 20, 2000
Letter from Applicant, dated October 12, 1999
Special Request/Authorization NAVPERS 1336/3, dated September 29, 1999
Statement from Gunner, dated August 09, 1999
Statement from LN1 L_ D_ F_, USN (undated)
Special Request/Authorization NAVPERS 1336/3, dated September 13, 1999 (unsigned, unrouted)
Special Request/Authorization NAVPERS 1336/3, dated September 21, 1999 (unrouted)
Special Request/Authorization NAVPERS 1336/3, dated October 07, 1998
Counseling Form, dated August 10, 1998
Counseling Form, dated September 09, 1998
Counseling Form, dated September 22, 1998 (2 pages)
Counseling Form, dated September 22, 1998
Statement from Applicant (undated)
Counseling Form, dated October 14, 1998
Counseling Form, dated April 21, 1999
Counseling Form, dated May 04, 1999
Counseling Form, dated May 10, 1999
Counseling Form, dated August 21, 1999 (2 pages)
Commander, Naval Region, Mid-Atlantic, Discharge Authorization dated October 26, 1999
Report and Disposition of Offense(s), dated September 29, 1999 (3 pages)
Administrative Remarks NAVPERS 1070/613, dated 19 October, 1999
Administrative Separation Processing Notice, dated October 20, 1999 (2 pages)
Travel Certificate, dated November 04, 1999 (2 copies)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19960823 – 19970622               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19970623             Date of Discharge: 19991118

 Length of Service (years, months, days):

         Active: 02 04 26 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 1 day
         Confinement:              none

 Age at Entry: 19

 Years Contracted: 4

Education Level: 12                                 AFQT: 56

 Highest Rate: AOAN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 1.5 (2)              Behavior: 1.5 (2)                 OTA: 2 .00 (2)

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): None.


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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MILPERSMAN, Article 1910-142.
Chronological Listing of Significant Service Events :

980410:  Applicant completed family care plan certificate.

 980810:  Counseling following Applicant’s failure to stand required watch as a result of non-availability of childcare.

980922:  Counseling following Applicant’s unauthorized absence from 0645 until 0900 as a result of non-availability of childcare.

981014:  Counseled for performance, behavior, duties and responsibilities.

990421:  Applicant counseled for incorrect recall number.

990504:  Applicant counseled for incorrect recall number.

990726:  Evaluation Report and Counseling Record, Block 43 comments: “Member counseled on numerous occasions for her financial responsibilities and excessive phone calls from creditors which have impacted her military duties. Requires excessive supervision on all work assignments.”

990804:  Applicant requests separation due to parenthood.

990821:  Counseling for behavior and duties, i.e. failure to stand required watch as a result of non-availability of childcare.

990821:  Retention Warning: Advised of deficiency (failed to provide dependent care certificate), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
990821:  Applicant completed family care plan certificate by answering, “I cannot comply”, to all questions.
990825:  Applicant request to speak to Officer-In-Charge approved.

 990827:  Applicants request for separation due to parenthood is disapproved stating ineligible according to MILPERSMAN 1910-124.

990917:  Applicant’s request for Captains Mast is approved. States “wants to talk about getting out, still not qualified”.

990922:  Applicants request chit for separation due to parenthood is approved.

990930:  Officer in Charge, Atlantic Ordnance Command Detachment, Sewell’s Point, Norfolk recommended to Commanding Officer, Atlantic Ordnance Command, Yorktown the Administrative Separation of AOAN B_ (Applicant) by reason of convenience of the government due to parenthood. Officer in Charge’s comments: “AOAN B_ (Applicant) gave birth to a child in June of 1999. She is married but cannot comply with the dependency care requirements of the Navy. She has been in the Navy approximately two years and is scheduled to transfer to sea duty. AOAN B_ would like to separate because of unavailability of family member’s help to raise her child, and therefore she is unable to deploy.
         We have confirmed her situation and recommended several options to her. I strongly recommend her separation from the Naval Service.”
991013:  Applicant to unauthorized absence at 0700 on 991013.

 991014:  Applicant from unauthorized absence at 0815 on 991014 (1 day).
991018:  NJP for violations of the UCMJ, Article 91 (contempt or disrespect toward a petty officer, i.e. 17 September 1999, repeatedly saying “F_ Y_” to AO1 L_) and Article 86 (unauthorized absence, from 0700, 13 October 1999, until 0815, 14 October 1999).
         Award: Reduction to E-2. No indication of appeal in the record.

991020:  Applicant notified of the intended recommendation for her discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to a commission of a serious offense and convenience of the government due to parenthood.

991020:  Applicant elected not to consult with counsel and elected to waive all rights except the right to submit statements to the Administrative Board or the Separation Authority in lieu of a board and the right to obtain copies of the documents used to support the basis for separation.
991026:  Commander, Navy Region, Mid-Atlantic authorized the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense. This letter references an Administrative Separation package dated 20 October 1999.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19991118 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of under other than honorable conditions. After a thorough review of all available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D). The Board presumed regularity in the conduct of governmental affairs (E).

 A finding of misconduct due to the commission of a serious offense requires only a showing (by preponderance of the evidence) of misconduct that would warrant a punitive discharge if tried by special or general court-martial, has occurred. Applicable regulations require that a Sailor’s characterization of service be based upon the member’s total performance of duty and conduct during the current enlistment. T he Applicant’s service was tarnished by nonjudicial punishment (NJP) for violations of UCMJ, Article 86 (unauthorized absence), and Article 91 (insubordinate conduct, disrespect). Reference (A) defines a violation of Article 91 as the commission of a serious offense, the misconduct for which the Applicant was discharged. There is credible evidence in the record that the Applicant committed the serious offense. The evidence of record does not demonstrate that the Applicant was not responsible for her conduct or that she should not be held accountable for her actions. Separations under these conditions generally result in an under other than honorable conditions characterization of service. Relief is denied.

The Applicant contends that she was awarded a reduction in rank at NJP and should not have been further punished. The fact is that the Applicant committed a crime punishable by confinement if adjudicated by courts martial. Furthermore , the administrative discharge process is a separate and distinct process from punitive proceedings such as NJP and court-martial. Administrative discharge processing is administrative in nature and not a form of punishment. The a dministrative discharge process may be initiated prior to, following, or even in the absence of NJP as a completely separate process. The record clearly reflects the Applicant’s willful misconduct, demonstrating she was unfit for further service. The NDRB found the Applicant's issue without merit. Relief not warranted.

The Applicant contends that her discharge should be for parenthood as she had requested. The NDRB sees no connection between the Applicant’s misconduct and the request for discharge due to parenthood. The record clearly reflects the Applicant’s misconduct, documented by multiple counseling’s began in August 1998. The Applicant was properly notified of her intended discharge by reason of misconduct and parenthood as required by applicable regulations. Failure to comply with the Navy’s requirement to complete a family care plan certificate does not equate to mandatory separation and this narrative reason for separation does not take precedence over misconduct. Relief not warranted.

In the absence of a complete discharge package, the Board presumed regularity of governmental affairs. The record does document misconduct that is classified as the commission of a serious offense as well as the Applicant’s notification and election of rights followed by the discharge authorization. The Board presumed the Applicant’s discharge to have been conducted in accordance with that described in reference “A”. If the Applicant feels her discharge was administratively flawed she bears the burden of establishing her issues through the presentation of substantial and credible evidence.

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 18, effective
12 Dec 97 until 29 March 2000, Article 1910-142 [formerly 3630605]. SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE .
B. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 91.

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 .

E. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs .

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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