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NAVY | DRB | 2005_Navy | ND0501483
Original file (ND0501483.rtf) Auto-classification: Denied


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

ex-FA, USN
Docket No. ND05-01483

Applicant’s Request
The application for discharge review was received on 20050908. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable and the Narrative Reason for Separation be changed to “not able to sign dependence care.” 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 20060619. 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 and reason for discharge shall not change. The discharge shall remain General (Under Honorable Conditions) by reason of misconduct due to a pattern of misconduct .

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“1. My discharge was imitated by me due to not being able to sign the dependents care sheet.
2. The two incidents in which I got in trouble were each isolated events that occurred over a year before I was discharged.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (Member 1)
Applicant’s DD Form 214 (Copy 4)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19980226 – 19980420               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19980421             Date of Discharge: 20001208

 Length of Service (years, months, days):

         Active: 02 07 18 (Does not include lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 25 days
         Confinement:              None

 Age at Entry: 18

Years Contracted: 4 (24 months extension)

 Education Level: 12                                 AFQT: 80

 Highest Rate: FA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.0 (3)              Behavior: 2.3 (3)                 OTA: 2.7

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):

GENERAL (UNDER HONORABLE CONDITIONS)/ PATTERN OF MISCONDUCT, authority: MILPERSMAN, Article 1910-140 (formerly 3630600).
Chronological Listing of Significant Service Events :

981014:  NJP for violation of UCMJ, Article 92 (2 specs): Wrongfully wearing a tongue stud in her mouth.
 Award: Forfeiture of $199.00 per month for 1 month, restriction and extra duty for 14 days, reduction to E-1 (suspended for 6 months). No indication of appeal in the record.
981014:  Retention Warning: Advised of deficiency (Poor military performance, to wit: uniform violation (x2) ), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 990701:  Applicant UA from USS DWIGHT D. EISENHOWER (CVN 69) located Portsmouth, VA at 0530, 99 May 31. Intensions unknown. Applicant missed ship’s movement 99 June 02 and 99 June 08. Applicant surrendered on board USS DWIGHT D. EISENHOWER (CVN 69) at 1310, 99 June 25. Applicant charged 25 days lost time.
990715:  NJP for violation of UCMJ, Article 86: Unauthorized absence from unit from 99 May 31 until 99 Jun 25.
 Violation of UCMJ, Article 87 (2 Specifications): Through design miss ship’s movement on 99 June 02 and 99 June 08.
          Award: Forfeiture of $479.00 per month for 2 months (1 month suspended for 6 months), restriction and extra duty for 45 days (15 days suspended 6 months), reduction to E-1. No indication of appeal in the record.

000919:  Retention Warning: Advised of deficiency (Failure to comply with U.S. Navy single sponsor/military couple with dependant/s policy in accordance with OPNAVINST 1740.4 and MILPERSMAN 3810190.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 000927:  Family Care Plan Certificate: Applicant indicated that she is unable to comply with the Navy's policy for dependent care.

001018:  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.”

001019:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of COG – Parenthood, misconduct due to a pattern of misconduct due to a pattern of misconduct, misconduct due to commission of a serious offense.
001020:  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 and to submit statements for consideration by Separation Authority.
001102:  Commanding Officer, Naval Station Norfolk, recommended to Commander, Navy Personnel Command, that the Applicant be discharged with a general (under honorable conditions) by reason of convenience of the government due to parenthood, misconduct due to a pattern of misconduct, and misconduct due to commission of a serious offense. Commanding Officer’s comments: “FA M_ (Applicant) is married to MMFN C_ I. T_, USN, who is attached to the USS DWIGHT D. EISENHOWER (CVN-69). They are unable to make adequate dependent care arrangements for their two-month old son. FA M_ (Applicant) has orders to report to USS OSCAR AUSTIN (DDG 79) no later than 31 December 2000, but these orders are currently being held in abeyance. FA M_ (Applicant)’s inability to deploy renders her unsuitable for further naval service. MMFN T_ would like to make the military his career.
 FA M_ (Applicant)’s separation at this time would be considered in her best interest as well as that of the naval service. If separation is approved, it is recommended that the discharge be characterized as General based on the fact that FA M_ (Applicant) was taken to mast twice in her short naval career.”
001121:  COMNAVPERSCOM, directed that the Applicant will be discharged with a general (under honorable conditions) by reason of misconduct due to pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20001208 by reason of misconduct due to a pattern of misconduct (A and B) 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 and equitable (C and D).

The Applicant implies that her discharge is inequitable because separation was initiated due to her inability to sign the dependent care plan. It is true that the Applicant was processed for separation by reason of convenience of the government due to parenthood. However, because there was evidence of misconduct during this enlistment, the Applicant was, by regulations, multiple processed. Indeed, the Applicant was notified on 20001019 of the Command’s intent to recommend a general discharge by reason of convenience of the government due to parenthood, misconduct due to pattern of misconduct, and misconduct due to commission of a serious offense. While the least favorable characterization of service for pattern of misconduct and commission of a serious offense is under other than honorable conditions, the Applicant was notified that the least favorable characterization she could receive is general (under honorable conditions). On 20001121, Commander, Navy Personnel Command, chose to direct the Applicant’s discharge with a general characterization due to pattern of misconduct. Based upon the above review, the Board unanimously concluded that the Applicant’s discharge processing 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 contends that her discharge is inequitable because her incidents of misconduct were isolated events. Applicable regulations require that a member’s characterization of service be based upon the member’s total performance of duty and conduct during the current enlistment. However, there are circumstances where conduct or performance of duty reflected by a single adverse incident may form the basis of characterization for a Sailor’s overall service. The incident need not result in formal punishment to be properly used to characterize a Sailor’s service. The Applicant’s record was marred by two nonjudicial punishment proceedings for violation of UCMJ Article 86: Unauthorized absence (25 days); two specifications of Article 87: Missing ship’s movement; and two specifications of Article 92: Wrongfully wearing a tongue stud in her mouth. In addition, the Applicant received two retention warnings for deficiencies. Violation of UCMJ Articles 87 and 92 are serious offenses for which a punitive discharge is authorized under Appendix 12 of the Manual for Courts-Martial (B). Separation under these conditions generally results in characterization of service under other than honorable conditions. The Applicant was properly notified, processed and discharged with a general (under honorable conditions) by reason of misconduct due to pattern of misconduct. Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the U.S. Navy. Therefore, the Board concluded that the Applicant’s discharge was proper and equitable as issued. Relief denied.
The Applicant requests a Narrative Reason for Separation change to “not able to sign dependence care.” Under its responsibility to examine the propriety and equity of the Applicant's discharge, the NDRB will change the reason for discharge if such a change is warranted. A review of the records shows that the Applicant was multiple processed for discharge by reason of parenthood, pattern of misconduct, and commission of a serious offense. The summary of service clearly supports either of the Narrative Reasons forwarded to the Separation Authority. At the discretion of the Separation Authority, the Applicant was discharged due to pattern of misconduct. No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged. Therefore changing the Narrative Reason for Separation to “not able to sign dependence care” would be inappropriate. 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), Change 18, effective
12 Dec 1997 until 21 Aug 2002, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

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 87 Missing movement and Article 92 Failure to obey order or regulation.

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 .


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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