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

FOR OFFICIAL USE ONLY

 ex-ENFN, USN
Docket No. ND05-00768

Applicant’s Request

The application for discharge review was received on 20050405.  On the application the Applicant requested a personal appearance hearing before the Board in at the Washington Navy Yard in an effort to upgrade the characterization of her service to honorable.  The Applicant designated the American Legion as her representative on the DD Form 293.

Decision

A personal appearance hearing review was conducted in Washington, D.C. on 20060412.  After a thorough review of all available 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 3 to 2 that the characterization of the discharge shall not change and 3 to 2 that the reason for discharge shall not change.  The discharge shall remain General (Under Honorable Conditions) by reason of misconduct due to the commission of a serious offense.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

The Applicant’s American Legion Representative submitted the following three equity issues on the date of the hearing.  These issues superseded the issues previously submitted by the Applicant:

“1.  This former member avers that her discharge is too harsh and warrants upgrade on the basis of her overall service record.

2.  This former member further requests that the Board consider provisions of SECNAVINST 5420.174D, Part V, Paragraph 503, as it pertains to post-service conduct, in assessing the merits of this application.

3.  This former member finally opines that her narrative reason for separation, Misconduct, was inequitably assigned and warrants change to Secretarial Authority.”

Documentation

The Applicant submitted the following additional documentation to be considered in addition to the Applicant’s service and medical record:

Applicant’s DD Form 214  (Service 8 Copy)
Employer Identification Number, dated September 22, 2004 (2 copies)
Character Reference letter from N_ G_, dated March 07, 2005 (2 copies)
Class schedule, Tidewater Community College, printed March 25, 2005
Transfer Credit Evaluation, Tidewater Community College, dated October 10, 2003
Medical Assistant Diploma, Tidewater Tech, dated July 18, 2002 (2 copies)
Recognition Award, ECG Technique, dated July 18, 2002 (2 copies)
Criminal history record and/or sex offender and crimes against minors registry search, dated November 16, 2004  (2 pages)
Disability rating from the Department of Veterans Affairs, dated August 26, 2004 (2 pages)
Character Reference letter from E_ S_, dated March 28, 2006
“Philosophy of Life” Mother Teresa
Commonwealth of Virginia, Voluntarily Registered Family Day Home, dated March 20, 2006
Tidewater Community College, Unofficial Transcript, printed March 28, 2006 (3 pages)
Department of Veterans Affairs, Entitlement update, dated November 15, 2005 (2 pages)
Criminal history record and/or sex offender and crimes against minors registry search, dated January 04, 2006 
Tidewater Community College, Phi Theta Kappa membership offer, dated February 21, 2006 (unsigned)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19991115 – 19991207		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19991208		Date of Discharge:  20020813

Length of Service (years, months, days):

	Active:    02 08 06  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  17 (Parental Consent)

Years Contracted:  4 

Education Level:  12				AFQT:  43

Highest Rate:  ENFN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.0 (1)	Behavior:  3.0 (1)		OTA:  NFIR

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  MILPERSMAN, Article 1910-142 (formerly 3630605).

Chronological Listing of Significant Service Events: 

000501:	Applicant violated UCMJ Article 92 (failure to obey an order or regulation) by having a male in an area designated for females only and Article 128 (assault) by striking another service member in the face with an open hand.

000517:	NJP for violations of UCMJ, Article 92 (failure to obey and order or regulation, having a male in a area designated for females) and Article 128 (assault).
Award:  Forfeiture of $100.00 pay per month for 1 month, restriction and extra duty for 10 days.  No indication of appeal in the record.

000517:	Retention Warning:  Advised of deficiencies (poor military performance, assault, and having a male in an area designated for females), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

010914:	Civil Conviction:  General District Court, Traffic Division, Norfolk, VA for violation of no license/learner permit and disregarding a red light.
Sentence:  Reduced to no operator’s license in possession, fined $10.00 and $25.00 plus court cost.

011010:	Retention Warning:  Advised of deficiencies (civil conviction), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

020420:	Retention Warning:  Advised of deficiency (failure to comply with U. S. Navy single sponsor/military couple with dependent/s policy in accordance with OPNAVINST 1740.4A. and MILPERSMAN 1910-124), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

020430:	Family Care Plan Certificate:  Applicant indicated that she was unable to comply with the Navy’s policy for dependent care.

020711:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of convenience of the government due to parenthood, misconduct due to the commission of a serious offense and misconduct due to civil conviction.

020711:	Applicant elected not to consult with counsel and elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

020711:	Commander Officer, Naval Station Norfolk, directed the Applicant's discharge with a general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.

020830:	Commanding Officer, Naval Station Norfolk, reported to Chief of Naval Personnel that the Applicant had been discharged with a general (under honorable conditions) by reason of misconduct due to commission of a serious offense, misconduct due to civil conviction and convenience of the Government due to parenthood.  Commanding Officer’s comments:  “After reviewing ENFN G_’s (Applicant) service record and her request for discharge, I found it in the best interest of the Navy and ENFN G_ (Applicant) to be discharged from the Naval service.  ENFN G_ (Applicant) provided supporting documentation showing she does not have anyone to provide childcare for her daughter making her unsuitable for worldwide assignments and unable to deploy.  Given her prior misconduct and chain of command’s input, I separated her with a General discharge.”

050201:	NDRB documentary record review Docket Number ND04-00955 conducted.  Determination: discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020813 by reason of misconduct due to commission of a serious offense (A and B) with a service characterization of general (under honorable conditions).  After a thorough review of all available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).  

Misconduct due to the commission of a serious offense requires only a showing that misconduct, which would warrant a punitive discharge if tried by special or general court-martial, has occurred.  Applicable regulations require that a Sailor’s characterization of service be based upon the member’s total performance of duty and conduct during the current enlistment.  There are circumstances where conduct or performance of duty reflected by even a single adverse incident may form the basis of characterization for a Sailor’s overall service. The Applicant’s service was tarnished by a nonjudicial punishment (NJP) for violations of UCMJ, Article 92 (failure to obey and order or regulation), and Article 128 (assault), as well as a civil traffic conviction and two retention warnings.  Reference (A) defines each violation of Articles 92 and 128 as the commission of a serious offense, the misconduct for which the Applicant was discharged.  There is credible evidence in the record that the Applicant committed serious offenses.  The evidence of record does not demonstrate that the Applicant was not responsible for her conduct or that she should not be held accountable for her actions.  Separations under these conditions generally result in a less than honorable characterization of service.  Relief is denied.

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 Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge 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.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  The Applicant provided two character reference letters, documentation verifying her home day care, a transcript and diploma from Tidewater Community College, verification of her 60% VA disability rating, and a current criminal record check.  The Board acknowledges the Applicant’s significant post service accomplishments.  However, after careful consideration, the Board concluded the Applicant’s post-service achievements have been insufficient to mitigate her misconduct while in the Naval service.  Relief denied.

The Applicant has exhausted her opportunities for review by the NDRB.  The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization service, if she desires further review of her case.

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.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for each violation of the UCMJ, Articles 92 and 128 

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

		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