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NAVY | DRB | 2011_Navy | ND1100341
Original file (ND1100341.rtf) Auto-classification: Denied

ex-EM3, USN
Current Discharge and Applicant’s Request
Application Received: 20101123
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)        20061021 - 20061120     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20061121     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20091229      Highest Rank/Rate: EM3
Length of Service: Y ear( s ) M onth( s ) 09 D a y ( s )
 Education Level:        AFQT: 79
Evaluation M arks:         Performance: 4.0 ( 2 )      Behavior: 4.0 ( 2 )        OTA: 3.67

Awards and Decorations ( per DD 214):      (2)

Periods of UA /C ONF :

NJP :              S CM :             SPCM:             C C :

Retention Warning Counseling :

- 20070110 :       For your disclosure to Recruit Quality Assurance Team (RQAT) at Moment of Truth regarding your one Chart “ A ” offense: Failure to display handicap placard. The City of Seal Beach, CA faxed over documents stating your ticket had been paid. The information regarding the above offense was based on your voluntary statement of 20061206. There are no fur ther violation s pending.

- 20091006 :       For failure to maintain an up-to-date F amily Care Plan, which can r esult in separation processing.

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 :        





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

Applicant’s Issues

 1.        Applicant seeks a discharge upgrade to obtain veteran education benefits.
2.       Applicant contends her discharge was inequitable.

Decision

Date: 20 1 2 02 16             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 identif ied one decisional issue for the Board ’s consideration . T he Board complete d a thorough review of the circumstances that led to her discharge and the discharge process to ensure her discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included two NAVPERS 1070/613 (Page 13) retention warnings . There was no evidence of commanding officer nonjudicial punishment (NJP) or trial by courts-martial. The record indicates the Applicant was divorced from her husband in Sep 2009. Within a few weeks and after exploring all available options, the Applicant notified her command that she could no longer comply with the U.S. Navy Family Care Plan requirements. Based on this notification, the Applicant’s command processed her for administrative separation. When notified of administrative separation processing using the procedure on 24 Nov 2009 , the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority review. The Applicant’s Commanding Officer endorsed her administrative separation package on 2 Dec 2009 and sent it to the Commander, Navy Personnel Command (PERSCOM) for final disposition. On 21 Dec 2009, PERSCOM directed that the Applicant be discharged from the Navy with a characterization of service based on her service record and on the basis of Parenthood (Custody of a Minor Child). The Applicant was separated from the Navy on 29 Dec 2009 with a General (Under Honorable Conditions) discharge due to Parenthood.

: (Nondecisional) The Applicant seeks a discharge upgrade to obtain veteran education benefits. The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities as regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge
: (Decisional) ( ) . The Applicant contends her discharge was inequitable. In her final Evaluation and Counseling Report (dated 29 Dec 2009) , the reporting official stated , “(The Applicant) is an outstanding and extremely talented Sailor who is dedicat ed to the Command and the Navy’s mission...Dedicated several hours to the preparation of all divisional spaces for a command wide inspection which set the standard for excellence…consummate volunteer for collateral positions…Meticulous, key assistant in the cleaning of five load centers and shore power switchboards assuring maximum reliability during the C Y10 Middle East Deployment. (The Applicant) is a phenomenal worker with a dynamic personality. She is a force multiplier for any organization.” Per the Naval Mi litary Personnel Manual (MILPERSMAN) , a Sailor may be awarded a General (Under Honorable Conditions) discharge if a member’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance outweigh positive aspects of the member’s military record. T he Applicant’s record contains no record of misconduct (i.e. , NJP, court-martial, civil arrest/conviction). Based on the Applicant’s exemplary record of service, the NDRB determined that her discharge, although proper, was inequitable and not in accordance with the MILPERSMAN in effect at the time of her separation. Accordingly, the Board found the Applicant’s issue warranted relief on the basis of equity. Relief warranted.




Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries, and the administrative separation 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 for additional information.

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 .



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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