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NAVY | DRB | 2005_Navy | ND0501480
Original file (ND0501480.rtf) Auto-classification: Denied


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

ex-YNSN, USN
Docket No. ND05-01480

Applicant’s Request
The application for discharge review was received on 20050907. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions). The Applicant requests a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20060614. After a thorough review of the 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 character of the discharge shall not change. The discharge shall remain Under Other Than Honorable Conditions in lieu of a trial by court-martial .

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“The Discharge is improper because I requested a discharge due to parenthood in January of 2001 and my last dependency care form was a cannot comply. The Discharge was improper because I was placed on shore duty and due to the fact because of parenthood once again I was UA once again. They took my shore duty orders from me and placed me sea duty. My orders were involuntary and no Dependency care form was signed. My discharge was improper because at the time VF 102 was out to sea and my son was still in my care and custody. My discharge was improper because I could not go out to sea because I didn’t have adequate childcare. I am respectfully requesting an upgrade to General under honorable conditions. My evaluation reports even after my mast were never below a 3.0.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Fourteen pages from Applicant’s service record
Letter from National Personnel Records Center, dtd October 13, 2005
Letter from Department of Veterans Affairs, dtd October 4, 2005
Medical Registry System, On-Line Records Retrieval System page showing no records found, dtd October 11, 2005

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19980612 - 19980921      COG
          Active: None

 Period of Service Under Review :
Date of Enlistment: 19980922             Date of Discharge: 20030522

 Length of Service (years, months, days):

         Active: 04 08 01 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 509 days
         Confinement:              None

 Age at Entry: 18

 Years Contracted: 4

 Education Level: 12                                 AFQT: 52

 Highest Rate: YNSN

 Final Enlisted Performance Evaluation Averages (number of marks):*

 Performance: 4.0 (1)*    Behavior: 1.0 (1)        OTA: 3. 00

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal.
*Extracted from supporting documents provided by the Applicant.


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

UNDER OTHER THAN HONORABLE CONDITIONS/ IN LIEU OF TRIAL BY COURT MARTIAL, authority: MILPERSMAN, Article 1910-106 (formerly 3630650).

Chronological Listing of Significant Service Events :

991128:  Applicant to unauthorized absence at 0630 on 991128.

 991206:  Applicant from unauthorized absence at 0630 on 991206 (8 days/surrendered).
000616:  Applicant’s son born.

000801:  Applicant’s son residing with grandmother.

000922:  Applicant’s son residing with Applicant.

010106:  Family Care Plan Certificate: Applicant indicated that she was unable to comply with the Navy's policy for dependent care.

010212:  NJP for violation of UCMJ, Article 86: Absent without leave.
         Award: Forfeiture of $116.00 per month for 1 months, 30 days restriction, and reduction to E-3. Reduction suspended for 6 months. No indication of appeal in the record. [Extracted from CO’s letter dated 010315.]
010312:  Commander Certification of Family Care Plan Certificate: “I have reviewed this Family Care Plan and I am not satisfied that the member has made adequate family care arrangements that will allow for a full range of military duties and for worldwide availability as defined here. Member has not made adequate care arrangements.”

010313:  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.
010313:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
010315:  Commanding Officer, Helicopter Combat Support Squadron EIGHT, Norfolk, VA recommended discharge with a general (under honorable conditions) by reason of convenience of the government due to parenthood. Commanding Officer’s comments: “After repeated attempts, YN3 M_(Applicant) has been unable to comply with the Navy’s Family Care Plan and secure adequate dependent care arrangements for her son. Her mother and other family members are either unwilling or unable to take temporary responsibility of her child. YN3 M_(Applicant)’s concern for her child has been noted, and it is obvious that she no longer desires to be an active part of the United States Navy. I feel it is in the best interest of the Navy and all concerned for YN3 M_(Applicant) to be separated and to have the opportunity to raise her children in a different environment. I recommend that she be separated from the Naval Service with a General (under honorable conditions) Discharge.”

010621:  CNPC disapproved Commanding Officer’s recommendation to administratively d ischarge the Applicant due to parenthood. Retain Applicant on active duty. Applicant is instructed to contact detailer for orders.

010723:  NJP for violation of UCMJ, Article 86: Absent without leave.
         Award: Forfeiture of $200 per month for 2 months, reduction. No indication of appeal in the record. [Extracted from Evaluation Report and Counseling Record dated 011005.]
011121:  Applicant to unauthorized absence on 011121. [Extracted from DD Form 214, Block 29.]
030426:  Applicant from unauthorized absence on 030426 (501 days). [Extracted from DD Form 214, Block 29.]
030522:  DD Form 214: Applicant discharged under other than honorable conditions in lieu of trial by court martial, authority: MILPERSMAN, Article 1910-106.

 Service Record did not contain the Separation Package.
Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20030522 in lieu of a trial by court-martial (A and B) with a service characterization of under other than honorable conditions. 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 (C and D). The Board presumed regularity in the conduct of governmental affairs (E).

 In the absence of a complete discharge package, the Board presumed that the Applicant requested discharge to escape trial by court-martial; that the Applicant had the elements of the offense for which she was charged fully explained by counsel; that the Applicant admitted guilt to the offense; and that the Applicant had a complete understanding of the negative consequences of her actions. 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. Relief denied.

The Applicant contends that her discharge was improper because she requested separation due to parenthood. It is true that on 20010313, the Applicant was properly notified and processed for administrative separation by reason of convenience of the government due to parenthood. However on 20010621, Commander, Navy Personnel Command, disapproved the request and directed retention on active duty. Subsequent to that decision, on 20011121, the Applicant violated UCMJ Article 86 by being absent without leave from her unit. The Applicant remained in an unauthorized absence status for 501 days when she surrendered. A violation of UCMJ Article 86 is a serious offense for which a punitive discharge is authorized under Appendix 12 of the Manual for Courts-Martial (B). The Applicant was discharged under other than honorable conditions in lieu of a trial by court-martial. By regulation, a discharge shall be deemed proper, unless it is determined that an error of fact, law, procedure, or discretion has substantially prejudiced the rights of the Applicant. Based upon the above review and a presumption of regularity, the Board unanimously concluded that the Applicant’s discharge was in substantial compliance with applicable statutes, rules, and regulations. Despite the Applicant’s contentions, the Board could find no error of fact, law, procedure, or discretion that might afford the Applicant relief. Thus, the Board concluded that relief is not warranted.

The Applicant also contends that the service characterization of under other than honorable conditions was inequitable considering the Applicant’s quality of service. A service characterization of under other than honorable conditions 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. In addition to the 501-day unauthorized absence period, the Applicant’s service record was marred by two non-judicial punishment proceedings on 20010212 and 20010723 for violation UCMJ Article 86: Unauthorized absence. The Applicant’s conduct and performance, which forms the primary basis for determining the character of her service, reflect a failure to meet the requirements of her contract with the Navy. Therefore, the Board found that the Applicant’s service was equitably characterized. Relief on this basis is 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 post-service accomplishments or any other evidence related to the 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), re-issued October 2002, effective 22 Aug 2002 until Present, Article 1910-106 (formerly 3630650), SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

B. A punitive bad conduct discharge may be adjudged for violation of the Uniform Code of Military Justice, Article 86, unauthorized absence for a period more than 30 days, upon conviction by a Special or General Court-Martial, in accordance with the Manual for Courts-Martial.
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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