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

 
ex-SM3, USN
Docket No. ND03-01451

Applicant’s Request

The application for discharge review was received on 20030903.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance discharge review before a traveling panel closest to Fort Pierce, Florida.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington, D.C. area.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 20041013.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was 4-1 that the character of the discharge shall not change.  The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/PARENTHOOD OR CUSTODY OF MINOR CHILDREN, authority: NAVMILPERSMAN, Article 1910-124 (formerly 3620215).

The NDRB did note administrative error(s) on the original DD Form 214.  Block 25, Separation Authority, should read:  "NAVMILPERSMAN, Article 1910-124" vice "MILPERSMAN 1910-120," and Block 29, Dates of Time Lost During This Period, should read:  “TL: 96AUG17-96AUG19” vice “TL - 96AUG17-96AUG18.”  The Commander, Naval Personnel Command, Millington, TN, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.
PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I REQUEST THAT MY CHARACTER OF SEPERATION BE CHANGED TO HONORABLE SO THAT I MAY UTILIZE MY EDUCATIONAL BENEFITS UNDER THE MONTGOMERY BILL.  WHEN I WAS GETTING SEPERATED I WAS TOLD THAT THIS TYPE OF DISCHARGE WOULD NOT AFFECT MY BENEFITS, BUT I LATER FOUND OUT THAT I COULD NOT GO TO SCHOOL.  I HAVE TWO SMALL CHILDREN AND WOULD LIKE TO GET A BETTER EDUCATION SO THAT I CAN PROVIDE THEM AS A SINGLE MOTHER.  THANK YOU FOR YOUR CONSIDERATION.”

Documentation

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

Applicant’s DD Form 214
Letter from Applicant
Unofficial transcript (3 pages)
Letter from K_ M_
Letter from N_ M_
Letter from M_ B_
Applicant’s employment history

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	931221 - 940620	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  940621			Date of Discharge:  990910

Length of Service (years, months, days):

	Active:    05  02  20
	Inactive:  None

Age at Entry:  17 Parental consent		Years Contracted:  4 (30 months extension)

Education Level:  12				AFQT:  53

Highest Rate:  SM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF*			Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  2

*No marks found 

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

GENERAL (UNDER HONORABLE CONDITIONS)/PARENTHOOD OR CUSTODY OF MINOR CHILDREN, authority:  NAVMILPERSMAN, Article 1910-124 (formerly 3620215).

Chronological Listing of Significant Service Events:

980204:	Applicant extended enlistment for 24 months.

960817:	Applicant to unauthorized absence 0015, 960817.

960819:	Applicant from unauthorized absence 0730, 960819 (2 days/surrendered).

960907:	NJP for violation of UCMJ, Article 86 (2 specs): Unauthorized absence on two different incidents.
	Award: Restriction and extra duty for 30 days, reduction to E-3.  Reduction suspended for 6 months.  No indication of appeal in the record.

980923:	Applicant extended enlistment for 6 months.

981214:	Retention Warning:  Advised of deficiency (Your CO’s NJP held on 960907 for VUCMJ, Article 86), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 	

990719:	NJP for violation of UCMJ, Article 86:  Abandoned duty section on 990705.
	Award: Forfeiture of $637 per month for 1 month, restriction and extra duty for 45 days, reduction to E-3.  Forfeiture of $400.00, restriction and extra duty for 15 days, and reduction suspended for 6 months.  No indication of appeal in the record.

990819:	Family Care Plan Certificate:  Applicant indicated that she was unable to comply with the Navy's policy for dependent care. 

990827:	Applicant notified of intended recommendation for discharge with a general (under honorable conditions) by reason of convenience of the Government due to parenthood or custody of minor.

990827:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

990831:	Commanding Officer recommended discharge with a general (under honorable conditions) by reason of misconduct due to pattern of misconduct and by reason of convenience of the Government due to parenthood or custody of minor children.  Commanding Officer’s comments (verbatim): SM3 S_ (Applicant) has been unable to comply with OPNAVINST 1740.4A regarding child care for her dependent children.  Her every effort has failed to find someone to assume the responsibility of caring for her minor children.  SM3 S_ (Applicant) recently went to nonjudicial punishment for an unauthorized absence of abandoning her duty.  She also has a previous nonjudicial punishment of two unauthorized absences.  Her chain of command recommends separating her and I concur.  Therefore, I have directed that SM3 S_ (Applicant) be separated from the naval service with a general discharge (under honorable conditions) for convenience of the government due to parenthood.

020307:	NDRB documentary record review Docket Number ND01-01067 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19990910 with a general (under honorable conditions) by reason of convenience of the Government due to parenthood or custody of minor children (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 found that the discharge was proper and equitable (C and D).

Issue 1:  Characterization of service as general (under honorable conditions) is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service record is marred by award of non-judicial punishment (NJP) on two separate occasions for violating the UCMJ, Article 86, thus substantiating the misconduct.  The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her misconduct, and falls below that required for an honorable characterization of service.  An upgrade to honorable would be inappropriate.  Relief denied.

The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board (NDRB).  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veteran’s benefits and this issue does not serve to provide foundation upon which the Board can grant relief.  

There is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in civilian life, subsequent to leaving the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  The Applicant did not provide sufficient verifiable documentation of good character and conduct to mitigate her misconduct while on active duty.  

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C, Change 21, effective 01 Sep 1998 to 26 Aug 2001, Article 1910-124 (previously 3620215), Separation by reason of Convenience of the Government - Parenthood.

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