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

   ex-EMFN, USN
Docket No. ND03-00085

Applicant’s Request

The application for discharge review, received 20021017, requested that the reason for the discharge be changed to Convenience of the Govt. Due to Pregnancy.  The Applicant requested a personal appearance hearing discharge review before the Board in the Washington National Capital Region.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter to the applicant, she was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20030912.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned impropriety in the assignment of the reason for discharge of the Applicant’s service.  The Board’s vote was unanimous that the reason for discharge shall change to: HONORABLE/CONVENIENCE OF THE GOVERNMENT- PREGNANCY OR CHILDBIRTH, authority: NAVMILPERSMAN, Article 1910 - 142 (formerly 3630605).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  During the process of my discharge from the Navy, I was told that my discharge was going to be Convenience of the Government due to Pregnancy/or Childbirth.  One week prior to my transfer to the Transient Personal Attachment, I went to legal to confirm all of my information.  When enrolled in Nuclear Field “A” School, upon graduation the service member is then promoted to Third Class Petty Officer, unless something happens, such a Non-judicial Punishment. I was sent to Captain’s Mast on 11May00 for violation of UCMJ Article 92, Failure to Obey a Lawful Order or Regulation, Underage Drinking.  I was reduced in rate from E-3 to E-2, fined ½ month’s pay for one month, and given thirty day restriction.  On 16Sep00 I was reinstated as an E-3.  Legal had all of the paperwork for my discharge and all of it said I was an Electrician’s Mate Fireman.  When I went into the office LNC B---told me after noticing that I wasn’t wearing a Third Class crow that my discharge would state my NJP results that took place eleven months before. I thought this was odd, considering the amount of time that had passed, and why wasn’t I told this two months earlier when my discharge process was started.  I asked if I was still be allowed to reenlist after my discharge and was told yes.  When I went to the Navy Reserves enlistment office I was told that due to my RE-4 Reentry Code I was not eligible to enlist in the Reserves or go back to active duty.

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Copy of DD Form 214
       Copies of Applicant’s service records (15 pages)

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Inactive: USNR (DEP)	19990430- 20000118	COG
	Active 	   None

Period of Service Under Review:

Date of Enlistment:  20000119		Date of Discharge:  20010613

Length of Service (years, months, days):

	Active:    01  04  25
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 (24 months extension)

Education Level:  12			AFQT:  81

Highest Rate:  EMFN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (3)	Behavior:  2.75 (3)		OTA:  2.92

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

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

HONORABLE /MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events:

000511:	NJP for violation of UCMJ, Article 92: Failure to obey lawful order 00/04/29 consuming alcoholic beverages while under age of 21.
Award: Restriction 30days, Forfeiture of $150 per month for 1 month, reduction to next inferior pay grade.  No indication of appeal in the record.

000511:	Retention Warning:  Advised of deficiency (failed to obey lawful order), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
000511:	Adverse Performance Evaluation, for 00MA31 to 00MAY11, Block  # 43 Reason for report:  Non-judicial Punishment, Demonstrated unreliability due to violation of UCMJ Article 92 (Failure to Obey a Lawful Order).  Concluding date:  00MAY18.

001205:	Name change issued.

010226:	Reinstatement to E-3 effective 16 September 2000.  FN Tomaini received an award of reduction in rate at Commanding Officer’s Non-Judicial Punishment 11 May 2000.  She displayed excellent efforts since her NJP and was advanced to E-3 effective 16 September 2000.

010416:	Applicant notified of intended recommendation for discharge with the least favorable characterization as General (under honorable conditions) by reason of Convenience of the Government due to Pregnancy or Childbirth and misconduct due to the commission of a serious offense.

010416:	Applicant advised of her rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

010417:	Commanding Officer Naval Nuclear Power Training Command, Goose Creek, SC directed Applicant’s discharge with an honorable the basis for Convenience of the Government-Pregnancy or Childbirth and Misconduct-Commission of a Serious Offense. 

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010613 with a discharge characterization of honorable for misconduct due to commission of a serious offense (A).  The Board presumed regularity in the conduct of governmental affairs (B).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board determined that the reason for discharge shall change to Convenience of the Government/Pregnancy or Childbirth (C and D).

The Applicant was processed for Convenience of the Government due to Pregnancy or Childbirth and misconduct due to commission of a serious offense.  A review of the Applicant’s service record shows she did not meet the requirements to be discharged for misconduct due to commission of a serious offense since there is no evidence that she violated the last retention warning issued by her commanding officer.  Therefore the reason for discharge shall be changed to Convenience of the Government due to Pregnancy or Childbirth.  Relief granted.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 31, dated 20 Feb 01, effective 25 Jan 01 until 21 Aug 02, Article 1910-142  [formerly 3630605].   SEPARATION BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 "afls14.jag.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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023