Upgrade.Vet

NAVY | DRB | 2009_Navy | ND0900901

Original file (ND0900901.rtf) Auto-classification: Denied

ex-PN3, USN

Current Discharge and Applicant’s Request

Application Received: 20090304

Characterization of Service Received:

Narrative Reason for Discharge: PARENTHOOD OR CUSTODY OF MINOR CHILDREN

Authority for Discharge: MILPERSMAN

Applicant’s Request: Characterization change to:
                  Narrative Reason change to: HARDSHIP/HUMANITARIAN

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        19981215 - 19981229     Active:

Period of Service Under Review:
Date of Enlistment: 19981230     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20020329      Highest Rank/Rate: PN3
Length of Service : Y ear ( s ) M onth ( s ) 29 D a y ( s )
Education Level:        AFQT: NFIR
Evaluation M arks:         Performance: NFIR         Behavior: NFIR OTA: NFIR

Awards and Decorations ( per DD 214):      OSR GCM

Periods of UA /C ONF :

S CM :

SPCM:

C C :

NJP: 20020122 [Information found in the Commanding Officer’s Recommendation for Administrative Separation - d etails regarding offense(s) not found in record ].

Retention Warning Counseling :

- 20020222 :       For failure to maintain an up-to- date Family Care Certificate

Types of Documents Submitted/reviewed

Related to Military Service:
DD 214:         Service/ Medical Record:                  Other Records:

Related to Post-Service Period:
         Employment:                        Finances:                          Education /Training :
         Health/Medical Records:          Substance Abuse:                           Criminal Records:
         Family/Personal Status:          Community Service:                References:
Additional Statements :
From Applicant:        From Representat ion :    From Congress m ember :

Oth er Documentation :

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

Applicant’s Issues

1. Applicant reports that her characterization of service will not allow her to access Department of Veterans Affairs (VA) benefits.
2. Applicant claims that she has served in the military with a faultless record .

Decision

Date: 20 0 9 0716 Location: Washington D.C . R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall PARENTHOOD OR CUSTODY OF MINOR CHILDREN .

Discussion

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharg e if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of g overnment al affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.

Per the Applicant’s letter 1910 of 11 December 2001 to the Commanding Officer, U.S. Naval Mobile Construction Battalion THREE, the Applicant requested a har dship discharge to assume primary care for her son after her mother was no longer able to care for him. Per the Commanding O fficer ’s ( U.S. Naval Mobile Construction Battalion THREE ) letter of 16 January 2002, the Applicant’s request for a humanitarian discharge was forwarded recommending approval. On 22 January 2002, the Applicant was awarded nonjudicial punishment (NJP) per the Commanding Officer’s (U.S. Naval Mobile Construction Battalion THREE) letter of 12 March 2002 ; the details regarding the offense(s) committed are not in the record. A pproximately one month later , a G eneral Administrative Message of 21 February 2002 was sent to the Applicant’s command from C ommander , Navy Personnel C ommand, M illington, Tennessee , indicating he r administrative separation package was referred to the Enlisted Favorable Separations Division for processing because it did not meet the criteria for humanitarian discharge. Per the Administrative Separation Processing Notice of 22 February 2002 , the Applicant was then notified of her a dministrative s eparation p rocessing by Reason of Convenience of the Government – Parenthood , waived all of her rights and was subsequently discharged with a General (Under Honorable Conditions) characterization of service.

: (Nondecisional) The Applicant contends that she will not be entitled to benefits from the VA with a characterization of General (Under Honorable Conditions). In her personal statement, the Applicant contends that she applied for Montgomery GI Bill education benefits and was denied three times. issues the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum , specifically the paragraph s concerning and , for additional information .

: (Decisional) ( ) PARTIAL . The Applicant contends her characterization of service and narrative reason should be upgraded because she has “ served her country consecut ively for three years and 3 months with the utmost nobility and commitment ” and is “ entitled to her VA benefits , having served the military with a faultless record. ” There is no evidence in the record indicating the Applicant had been given a retention warning for mi sconduct. However , the record does reflect she was awarded NJP on 22 January 2002, as discussed supra , thereby contradicting her statement that she had a faultless record. Taking her NJP into consideration , and a fter a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety in the discharge action but did discern an inequity in the characterization of the Applicant ’ s service based on the circumstances surrounding the Applicant’s discharge, her length of service and positive endorsement contained in the Memorandum of 23 November 2001 , which indicate s the App l icant had been a good S ailor who was diligent in her departmental responsibilities . The Board voted unanimously to upgrade the characterization of service to H onorable . However the NDRB determined the narrative reason to be most appropriate in light of the facts as stated supra which indicate she was not qualified for a h ardship d ischarge and that p arenthood was the most appropriate basis for discharge due to her inability to comply with the Family Care Certificate requirements .

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries, and d ischarge p rocess, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain PARENTHOOD OR CUSTODY OF MINOR CHILDREN.

The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge. The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct .

Pertinent Regulation/Law

A. The Naval Military Personnel Manual, (NAVPERS 15560C, Change 33, effective 27 August 2001 until
21 August 2002, Article 1910-124, 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 II, Para 211, Regularity of Government Affairs , Part V, Para 502, Propriety and Para 503, Equity .

ADDENDUM: Information for the Applicant

Complaint Procedures : If you believe 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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC 20301-4000. You should read Enclosure (5) of the Instruction 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 Instruction 1332.28 and other Decisional Documents by going online at “ http://Boards.law.af.mil . ”

Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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. There are veterans organizations such as the American Legion and the Association of Service Disable Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade. If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits: The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. 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.

Employment/Educational Opportunities : The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

Reenlistment/RE-code: Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code. Only the BCNR can make changes to reenlistment codes. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. 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.

Medical Conditions and Misconduct : DoD disability regulations do not preclude a disciplinary separation. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board, and is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, the medical board report is filed in the member’s terminated health record. Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or other medical related reasons. Only the BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct : The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered during Board reviews. Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle. The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate in-service misconduct was an aberration and not indicative of the member’s overall character.

Issues Concerning Bad-Conduct Discharges (BCD ): Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief. With respect to a discharge adjudged by a special court-martial, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed. The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership: The names and votes of the members of the NDRB 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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NAVY | DRB | 2009_Navy | ND0900901

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