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NAVY | DRB | 2010_Navy | ND1001335
Original file (ND1001335.rtf) Auto-classification: Denied

ex-FC3, USN
Current Discharge and Applicant’s Request
Application Received: 20100504
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        20040105 - 20041017     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20041018     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20070919      Highest Rank/Rate: FC3
Length of Service : 02 Y ear s 11 M onth s 02 D a ys
Education Level:        AFQT: 86
Evaluation M arks:         Performance: 3.75 ( 4 )     Behavior: 3.6 ( 5 )        OTA: 3.52

Awards and Decorations ( per DD 214): , , LoA , CoA

Periods of UA /C ONF :

NJP : 1

- 20051020 :       Article (Failure to obey order or regulation)
         Article 117 (Provoking speeches or gestures)
         Article 134 (General article, drunk and disorderly and incapacitated for the performance of duties, 2 specifications)
          Awarded : Susp ended:

S CM : NONE       SPCM:    C C :

Retention Warning Counseling : 1

         - 20070710 : For failure to maintain an adequate family care plan.

Administrative Corrections to the Applicant’s DD 214

The NDRB note d an administrative error on the original DD Form 214:

         Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read: “ NATIONAL DEFENSE SERVICE MEDAL, GLOBAL WAR ON TERRORISM SERVICE MEDAL, LETTER OF APPRECIATION, CERTIFICATE OF APPRECIATION ”
        
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. The Naval Military Personnel Manual, (NAVPERS 15560C, Change 14, effective 29 March 2006 until 3 August 2010, 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 .




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

Applicant’s Issues

 Decisional issue : The Applicant contends that her characterization of service at discharge was inequitable as it was based on one isolated incident in over 35 months of otherwise honorable service , she was discharged due to parenthood - not for misconduct , and her performance and conduct of record warrant a characterization of H onorable .

Decision

Date: 20 1 1 070 8            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 governmental affairs unless there is substantial credible evidence to rebut the presumption, to include eviden ce submitted by the Applicant.

The Applicant enlisted in the U.S. Navy for a four-year commitment with a twenty-four month extension for guaranteed training in the advanced electronics/computer field – AEGIS C ombat Systems Technical School . She completed two years and eleven mon ths of her obligated service. The Applicant’s record of service includes one 6105 retention-counseling warning regarding her failure to maintain an updated Family Care Plan as required by OPNAVINST 1740.4a and one nonjudicial punishment while at her “A” school for violation of the Uniform Code of Military Justice (UCMJ) , specifically , Article 92 (Failure to obey order or regulation ), Article 117 (Provoking speech and gestures) , and Article 134 (Drunk and disorderly and incapacitated for duties) . The Applicant’s record reflects completion of her gu aranteed training program as second in her class , advancement to Petty Officer Third Class, and payment of her enlistment bonus as stipulated in her enlistment contract.

On 12 November 2006, the Applicant was determined to be pregnant by competent medical authorities; on 13 November she was transferred off her ship and assigned to shore duties. The Applicant’s child was born on 17 May 2007; after returning from m aternity leave, the Applicant was unable to acquire competent care for her infant child and her family was unable to assist. The Applicant was advised of the Family Care Plan r equirements, but she was unable to comply. The NDRB reviewed the Applicant ’ s separation package to ensure she was notified properly and was accorded her rights as required by the Naval Military Personnel Manual (MILPERSMAN). On 10 July 2007, the Applicant was notified that she was being processed for administrative separation pursuant to Article 1910-124 of the MILPERSMAN - Parenthood or Custody of Minor Child . She was advised that the least favorable characterization of service warranted at discharge was General (Under Honor able Conditions); however, the C ommanding Officer recommended separation with an Honorable characterization of service. The Applicant waived her right to consult with qualified legal counsel and waived her right to submit written matters to the Separation Authority. On 30 Aug 2007, Commander , Naval Personnel Command ( NAV PERSCOM) approved the Applicant ’ s separation, directing the Applicant be discharged for the stated reason and that her characterization of service at discharge be characterized as General (Under Honorable Conditions) . Additionally, the Applicant was to be issued a re - entry code of RE-4 (not recommended for reenlistment) vice an RE-3B (Parenthood or custody of minor children a member is unable to perform prescribed duties, or unable to comply with family care plan requirements - Ineligible to reenlist without a Commander, Naval Recruiting Command waiver). The Applicant was discharged on 19 September 2007 .

(Decisional Issue ) ( ) . The Applicant contends that her characterization of service at discharge was inequitable as it was based on one isolated incident in over 35 months of otherwise honorable service, she was discharged due to parenthood - not for misconduct, and her performance warrant a characterization of H onorable.





Propriety - Due to the birth of her child as a single parent and lack of a family support network , the Applicant was unable to comply with the requirements of a family care plan to enable her to be able to deploy throughout the world on short notice and to be able to execute fully her military duties. The Applicant was properly notified, was accorded all rights as required by the MILPERSMAN, and was properly processed for separation. No other narrative reason more clearly describes the circumstances surrounding the Applicant’s processing for administrative separation. After a detailed review of the facts, circumstances, and issues unique to this discharge action, the NDRB determined that the Applicant was discharged properly in accordance with the MILPERSMAN. As such, relief based on matters of propriety is not warranted.

Equity - On 1 0 July 200 7 , the Applicant was advised of the proposed action recommending she be separated from the Naval service due to Convenience of the Government – Parenthood in accordance with Article 1910-124 of the MILPERSMAN. The Applicant’s chain of command recommended separation with an Honorable characterization of service. In accordance with Article 1910-124, the characterization of service at discharge for Convenience of the Government – P arenthood is Honorable, unless a General (Under Honorable Conditions) characterization is warranted. A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record. However, an Honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate.

The NDRB reviewed the Applicant’s service record, supporting documentation, and circumstances unique to this case. The Applicant’s service record documents a n NJP for underage drinking and drunk and disorderly conduct during the first three months of the Applicant’s service after basic entry level training; however, it also documents that she completed the “A” school and graduated second in her class with a M ust P romote evaluation and an overall trait average of 3.50. Additionally, her overall in - service record reflects a performance trait average of 3.75, a behavior trait average of 3.61, and an overall trait average of 3.52 , well above that which is required for an Honorable characterization of service upo n the completion of required active service. Additionally, the record reflects that the Applicant was recommend ed by her chain of command for Early Promote for her last two periods of evaluation. The NDRB was convinced that the Applicant overcame the misconduct of record that occurred at the beginning of her service and that her service was honest and faithful and met the standard of acceptable co n duct and performance for N aval personnel. As such, the NDRB discerned no impropriety in the discharge action, but did find that the characterization of service at discharge was inequitable. B y a vote of 5-0, the NDRB determined that the proper characterization of service warranted at discharge was Honorable. Relief as requested is provided.

Summary : After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and the discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain . 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 and Post-Service Conduct .


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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