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NAVY | DRB | 2010_Navy | ND1000970
Original file (ND1000970.rtf) Auto-classification: Denied

ex-YNSN, USN
Current Discharge and Applicant’s Request
Application Received: 20100302
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request:      Characterization change to:      
         Narrative Reason change to:       PARENTHOOD

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        19980612 - 19980921     Active:  

Period of Service Under Review:
Date of Current Enlistment: 19980922     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 200305 2 2      Highest Rank/Rate: YN3
Length of Service : Y ear ( s ) M onth ( s ) 11 D a y ( s )
Education Level:        AFQT: 52
Evaluation M arks:         Performance: 4.0 ( 1 )      Behavior: 1.0 ( 1 )        OTA: 3.00 from supporting documents

Awards and Decorations ( per DD 214):     

Periods of UA /C ONF : UA: 19991128-19991206, 8 days; 20011121-200304 0 6, 501 days / CONF:

NJP :

- 20010212 :      Article ( A bsence without leave, period not found in record )
         Awarded: Suspended: [Extracted from Commanding Officer’s letter dated 20010315.]

- 20010723 :      Article (A bsence without leave, period not found in record )
         Awarded : Susp ended: [Extracted from Evaluation Report and Counseling Record dated 20011005. Submitted by Applicant for previous review.]

S CM : SPCM: C C :

Retention Warning Counseling :

- 20010212 :       For VUCMJ Article 86 [Date extracted from Commanding Officer’s letter dated 20010315.]

NDRB Documentary Review Conducted (date):        20060614
NDRB Documentary Review Docket Number:   ND05-01480
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.

Administrative Corrections to the Applicant’s DD 214

 The NDRB did note administrative error(s) on the original DD Form 214:

         “ 99NOV28 TO 99DEC06; 01NOV21 TO 03APR06 ”

The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate.
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:           Rehabilitation/Treatment:                  Criminal Records:       
         Personal Documentation :           Community Service:                References:     
         Department of VA letter:                  Oth er Documentation:    
                  Additional Statements :
         From Applicant:            From /To Representation:            From /To Congress m ember :        

Pertinent Regulation/Law

 A. Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 30 May 2005, Article 1910-106, SEPARATION IN LIEU OF TRIAL BY COURT-MARTIAL.

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications .

 C . 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 .



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

Applicant’s Issues

 1.       The Applicant contends her Under Other Than Honorable discharge is too harsh for her misconduct of record, and thereby warrants an upgrade to General (Under Honorable Conditions).
2.       The Applicant believes her post-service conduct is worthy of consideration.

Decision

Date: 20 1 1 0504             Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall .
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 discharge 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. The Applicant’s record of service included NAVPERS 1070/613 (Page 13) warning and for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave , two charges, specifics not found in record ) . The Applicant’s service record indicates that the Applicant went absent without leave on 21 Nov 2001 for a total of 501 days before being apprehended and returned back to the Navy on 26 Apr 2003 . Based on the offenses committed by the Applicant and upon her request , command administratively processed for separation in lieu of trial by court - martial (SILT) . The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board or a General Court-Martial Convening Authority review.

W hen members submit a SILT request, they are afforded the opportunity to consult with a qualified counsel and submit a written statement. They state they fully understand the elements of the offense for which they were charged and that they were guilty of the offense. They further certify a complete understanding of the negative consequences of their actions and that characterization of service could be Under Other Than Honorable Conditions.
: (Decisional) ( ) PARTIAL . The Applicant contends her OTH discharge is too harsh for her misconduct of record, and thereby warrants an upgrade to General (Under Honorable Conditions). The NDRB reviews the propriety and equity of an Applic ant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service. Based upon available records and the Applicant’s testimony , nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy. A preponderance of the evidence reviewed supports the conclusion that the Applicant committed a serious offense, that separation from the Naval Service was appropriate, and that a n OTH discharge at that time was warranted.
The Applicant should understand h er separation was administrative in nature, not punitive. Although h er discharge was the result of misconduct, it was not part of the punishment awarded at a court-martial. Furthermore, as discussed above, violations of Article 86 could have resulted in punishment substantially more harsh than the dis charge the Applicant received.

The NDRB did not have the Applicant’s administrative separation package, but when members submit a SILT request, they are afforded the opportunity to consult with a qualified counsel and submit a written statement. They state they fully understand the elements of the offense(s) for which they were charged and that they were guilty of the offense(s). They further certify a complete understanding of the negative consequences of their actions and that characterization of service could be Under Other Than Honorable Conditions. During the personal appearance hearing on 04 May 2011 , the Applicant confirmed to the Board , when asked, that she fully understood her rights at that time and the ramification of a SILT discharge. The Applicant further explained that her major concern was to be discharged as fast as possible so she could get back home to care for her son. Furthermore, t he Applicant was three months pregnant with her second child when apprehended and turned over to the Navy.

The NDRB felt the Applicant’s command did not strongly engage Naval Personnel Command on behalf of the Applicant for a Parent h oo d discharge from the naval service when they were fully aware of the Applicant’s aggravated family care situation. On 15 Mar 2001 t he Applicant’s C ommanding O fficer submitted a recommendation for administrative separation due to the Applicant ’s demonstrated inability to comply with the Navy’s Family Care Plan Certificate . On 21 June 2001 NPC issued a letter disapproving the recommendation for administrative separation and directed th e member to contact her detailer for orders back to sea duty. There is no documentary evidence the Applicant’s command pursued further action to have the Applicant separated from the service.

The Board contends the Applicant’s CO, p ursuant to the requirements of MILPERSMAN, Article 1910-124, did not clearly explain the Applicant’s extenuating circumstances in the administrative separation package. According to MILPERSMAN 1910-124 , paragraph 1-j , CO comments , “provide comprehensive discussion of what, when, and why. Address specifics of childcare availability on base or in local community, and what actions command took to investigate /alleviate member’s claims. ” The CO did not address these items when the Applicant clearly demonstrated on paper and by her actions of unauthorized absences from place s of duty and work that she had a significant problem providing consistent alternat ive child care for her very young child . The Applicant was unable to comply with the requirements of a family care plan.
After a careful review of the Applicant’s documentation and official service record, and taking into consideration her testimony, and the facts and circumstances unique to this case, the NDRB determined partial relief is warranted based on equitable grounds. By majority rule, the NDRB voted to upgrade the Applicant’s discharge to General (Under Honorable Conditions).

The Applicant seeks a change in the narrative reason for discharge to Parenthood. Although no other narrative reason more clearly describes the circumstances surrounding the Applicant’s situation at the time prior to her going absent without leave for 501 days, the Board by a majority vote decided relief would be inappropriate. The re must be some responsibility by the A pplicant for her actions and decisions that caused her to be in this predicament. She admitted to not u s ing all available avenues and services available to her at the time such as military family services and other senior members within her command. The Applicant testified to the Board that she did not always seek out her chain of command for help and guidance but instead reverted to being absent from point of duty when faced with child care issues. Ultimately , she made a conscious decision to take matters in her own hands when faced with o rders back to sea duty. The NDRB found no evidence, nor did the Applicant provide any, to indicate she exhausted all options in satisfying the Navy’s Family Care Policy , and in light of serious misconduct, n o other narrative reason for separation more clearly describes why the Applicant was discharged.

: (Decisional) ( ) . The Applicant believes her post-service conduct is worthy of consideration. The NDRB considers 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. Besides the Applicant’s statement on the DD Form 293, she provided copy of her certification as a Medical Assistant from Remington College, proof of enrollment at Southwest Tennessee Community College, proof of employment at Cardiology Specialist of Memphis , and several letters of personal reference. The Applicant should be aware submission of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the NDRB on a case-by-case basis. The NDRB determined the Applicant did not provide sufficient post-service documentary evidence to form a basis of relief. The Applicant could have produced evidence as stated in the Post-Service Conduct paragraph in the A ddendum with the full understanding completion of these items alone does not guarantee an upgrade. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries, d ischarge p rocess , and testimony , the Board found the discharge was proper and equitable at the time of discharge . However, based on equity , the awarded characterization of service shall GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain .



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 Disabled American 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 their 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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