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NAVY | DRB | 2006_Navy | ND0600235
Original file (ND0600235.rtf) Auto-classification: Denied


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

ex-SK3, USN
Docket No. ND06-00235

Applicant’s Request
The application for discharge review was received on 20051116 . 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 “ PARENTHOOD OR CUSTODY OF MINOR CHILDREN . ” 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 20061108 . 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 and a ttached letter:
“ Upgrade of change is requested Because I would like to still have the opportunity to fight for my country. Justification 13, prior to me getting the discharge I received when separated. The RE-CODE was RE-3D & separation CODE was supposed BE JDG. ”
 Parenthood. Do to my situation & the command I was @ they changed my status because of personal reasons. I have fought several medical boards to continue my Naval Career. Then I ran into a situation child care was an issue. I let the command know & promised them I’d do everything in my power to get care. Because of the timing they where preparing me for Discharge with a RE-3B JDG. Ounce I found child care before Deployment with the proper paperwork signed & submitted it. The chief I was working Denied it.”
“ To whom it may concern my name is V_ P_ (Applicant). I was a E-4 Third Class petty officer in the United States Navy. I’m writing this letter to inform you that it was never my intentions to separate from the Navy. It has always been my dream to be apart of an organization that was great. To not only provide for my family but fight for my country as well. The five years that I served, the Navy has taught me a lot in which I Appreciate. However I don’t think I deserve the RE-CODE or narrative code I received ounce separated. Due to my current situation at the time with childcare I had to execute all of my options.
I fought a medical board in which I was found fit for full duty. Went on board the USS COMSTOCK (LSD 45) and ran into childcare issues. I explained to my chief at the time. Let her know that I was going to do everything in my power to find care. That way I would be able to go underway with the rest of the crew. She simply explained to me that if not then I would have to separated with a RE-3D JDG code. I found care in the allotted time frame I was left behind on shore. Although my paperwork had already been approved to separate. (I have copies of the documents). Because of some personal issues between the chief I worked for and I. The Entire situation was turned around all because I presented her with my Dependant Care Plan paperwork stating I wanted to remain in the navy. Also let her know that it was my right to have an allotted amount of time to find care in which I Did. (Copies enclosed) Therefore she ended up taking me to Captain’s Mass for false Accusations and had my separation paperwork changed. I thought she was helping but instead she was going against me for her on personal reasons. In conclusion I know that I’m held accountable for my own actions and I acknowledge that. That is one of the reasons I did everything to provide care for my chidren. So that I would have gone underway with the rest of the crew. I really appreciate the Medical Board giving me the opportunity to continue my Naval Career. At the time I joined I understood that the navy was a Sea Traveling career. In all honesty if I didn’t want to continue in the United States Navy I wouldn’t fought a medical board and was found fit for full duty. Nor would I have found care for my 5 year old twins by getting the care plan signed.
To whom this letter is of concern I ask that you review my record, copies and letter. Please reconsider changing my RE-Code, narrative reason as well as upgrading my character of Service. The type of separation I received not only prevent me from getting a job to provide for my family. It also effects me from going reserves, school and re-entering the navy, which would be an honor to do so. Ounce again it has been my dream to be apart of an organization so great. I really appreciate the navy for giving me the opportunity and experience. Please re consider, and give me a second chance to have honor, courage and committment With Much Gratitude

[signed] V_ P_ O_ (Applicant)

 * Upgrading respectfully requesting is Honorable, RE-3D, JDG* ”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Family Care Plan Certificate, dtd August 22, 2003 (3 pages)
Ltr from Commanding Officer, USS COMSTOCK (LSD 45)
Administrative Separation Processing Notification Procedure, dtd Aug 21, 2003 (2 pages)
Family Care Plan Certificate, dtd September 18, 2003 (2 pages)
Administrative Separation Processing Notification Procedure, dtd October 17, 2003 (2 pages)
 Applicant’s DD Form 214 (Member 1 & 4) (2 copies)
Ltr from Applicant, dtd December 15, 2005 (2 pages) (2 copies)
Occupational Competencies, dtd August 10, 2005 (2 pages) (2 copies)
Certificate of Competency for training courses in Medical Terminology, dtd August 10, 2005 (2 copies)
San Diego Community College District Academic Record, dtd December 20, 2005 (2 copies)
Character Reference ltr from K _ A _, dtd November 11, 2005 (2 copies)
Character Reference ltr from T. L. M_, dtd, December 16, 2005 (2 copies)
 Character Reference ltr from [illegible] , dtd December 15, 2005 (2 copies)
 Tech Prep / 2 + Certificate, Southwestern College, dtd August 10, 2005

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19981105 – 19981123      COG
         Active: None

Period of Service Under Review :
Date of Enlistment: 19981124              Date of Discharge: 20031121

Length of Service (years, months, days):

          Active: 0 4 11 27
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 1 d ay
         Confinement:              None

Age at Entry: 21

Years Contracted: 4 ( 12 -month extension)

Education Level: 12                                 AFQT: 34

Highest Rate: SK 3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3 .0 ( 5 )     Behavior: 2 . 6 ( 5 )                 OTA: 2 . 8

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Navy Unit Commendation, Armed Forces Expeditionary Medal, NATO Medal, KOSOVO Campaign Medal, National Defense Service Medal



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

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

990809:  NJP (no further information)
         [Extracted from NAVPERS 1070/604, Awards page].

991013:  Applicant to unauthorized absence at 0700 on 991013.

 991014:  Applicant from unauthorized absence at 0730 on 991014 (1 day/surrendered).
010508:  NJP for violation of UCMJ, Article 91: insubordinate conduct toward a senior petty officer (2 specs).
         Award: Reduction to E-2 (suspended 6 months). No indication of appeal in the record.
010508:  Retention Warning: Advised of deficiency (disrespect), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
020829 :  NJP for violation of UCMJ, Article 86: Absence from unit on or about 13 June 2002; violation of UCMJ, Article 90, willful disobedience of superior commissioned officer; violation of UCMJ, Article 91: willful disobedience of a third class petty officer.
          Award: Reduction to E-2 (suspended 6 months) and 30 days extra duty. No indication of appeal in the record.     

020903 :  Retention Warning: Advised of deficiency ( Non-judicial punishment awarded for violation of the UCMJ, Article 86, absence from unit; Article 90, willful disobedience of superior commissioned officer; and Article 91, willful disobedience of a third class petty officer. ), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
030822:  Family Care Plan Certificate: Applicant indicated that she is unable to comply with the Navy's policy for dependent care.
         [Extracted from Applicant’s supporting documents].
030822:  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.
         [Extracted from Applicant’s supporting documents].
030822:  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.
          [Extracted from Applicant’s supporting documents]
030826:  Commanding Officer, USS COMSTOCK (LSD 45), directed that the Applicant be discharged with a n honorable discharge by reason of parenthood or custody of minor children.
030918:  Family Care Plan Certificate: Applicant indicated that she is unable to comply with the Navy's policy for dependent care.
         [Extracted from Applicant’s supporting documents].

030926:  NJP for violation of UCMJ, Article 91: Insubordinate conduct toward a Warrant Officer, Commissioned Officer, or Petty Officer.
 Violation of UCMJ, Article 117: Provoking speeches and gestures.
          Award: Reduction to E-3 (suspended 6 months) and process for administrative separation. No indication of appeal in the record.
        
03 1017 :  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of misconduct due to pattern of misconduct.
         [Extracted from Applicant’s supporting documents].
031105 :  Applicant advised of rights and having consulted with counsel, elected to obtain copies of the documents used to support the basis for the separation.
          Applicant requested to submit written statements for consideration.
          [Extracted from Applicant’s supporting documents]

031119 :  COMPHIBGRU THREE, directed that the Applicant be discharge d with a general (under honorable conditions) by reason of misconduct due to pattern of misconduct.

Service Record contains a partial Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20031121 by reason of misconduct due to a pattern of misconduct (A and B) with a service characterization of under other than 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 Board presumed regularity in the conduct of governmental affairs (E).

In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. Specifically, Applicant alleged that she was wronged by her Chief resulting in her discharge for misconduct. The record, however, contains no evidence of any wrongdoing by the Applicant’s Chief or anyone else for that matter in the discharge process. The Board presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. As such, this Board presumed that Applicant’s discharge was regular in all respects. Relief denied.

The Applicant requests upgrade of her discharge to an honorable characterization and change of the narrative to convenience of the government on the basis of parenthood. 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 when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record. The Applicant’s service was marred by two retention warnings and three nonjudicial punishment proceedings for violations of UCMJ Articles 86 (unauthorized absence), 90 (willful disobedience of a superior commissioned officer), 91 (willful disobedience of a third class petty officer), and 117 (provoking speech and gestures). Violations of Articles 90 and 91 are considered serious offenses for which a punitive discharge is authorized at courts-martial. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider her discharge proper and equitable. 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 and falls far short of that required for an upgrade of her characterization of service. The summary of service clearly documents that misconduct due to a pattern of misconduct was the reason the Applicant was discharged. No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged. Relief is not warranted.

The Applicant provides post service documentation in support of her request for upgrade. 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 the service. The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was found not to mitigate the conduct, which precipitated the discharge. Relief denied

The Applicant requested a change of her reenlistment code to enable her to reenter the military. Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

The following is provided for the Edification of the Applicant. The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

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 additional evidence related to this discharge. 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 1910-140 (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 s 90 (willful disobedience of a superior commissioned officer) and 91 (willful disobedience of a third class petty officer) .

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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