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

 ex-IC3, USNR-R
Docket No. ND03-00146

Applicant’s Request

The application for discharge review was received on 20021030.  The Applicant requests that the characterization of service on the discharge be changed to honorable.  The Applicant requests a documentary record review.  The Applicant did not list any   representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040624.  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 unanimous that the character of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE  CONDITIONS/UNSATISFACTORY PERFORMANCE , authority: NAVMILPERSMAN, Article 3630300.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  “This discharge is improper because I completed all necessary requests to return to IRR status.  I have a letter that is submitted on my behalf.  The attests to exact, account of the incident.  I completed the forms with PO 3 L_.  He received his termination, but I never did.  I found out about this Discharge during a background investigation for the Department of Justice.  I first submitted this request in Sept. 1998.  This is my second request, as my five year background review is approaching.  The OPM investigator also told to me that I had been contacted and counseled for my lack of attendance. I had never been contacted, nor will there be a signature, initials or other markings by me that I would have acknowledge. I completed the forms, and was told that I would receive information in the mail when everything was completed.”

Documentation

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

Copy of DD Form 214
 Letter from Applicant dated July 15, 2003
Letter of Recommendation from LCDR P_ D. S_, undated
Letter of Recommendation from Dr. Z. Q_, dated December 12, 2002
Letter of Recommendation from M_ C. L_, dated Aug 12, 1998
Copy of orders for QM3 M_ C. T_, dated June 24, 1994
Copy of envelope addressed to M_ C. L_, dated June 28, 1994
Copy of Jailer License
Copy of Driver License
Copy of Instructor License for Texas Commission on Law Enforcement
Copy of Peace Officer License for Texas Commission of Law Enforcement
Letter of Recommendation from F_ B_, dated June 30, 1997
Copy of B.S. Degree in Criminal Justice from Chadwick University 
Copy of Certificate from Amarillo College   

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	871219 - 880731	COG
	 
Period of Service Under Review:

Date of Enlistment:  880801 	Date of Discharge:  940404

Length of Service (years, months, days):

	Active:    03  11  00
	Inactive:  01  09  04

Age at Entry:  17			Years Contracted:  4 

Education Level:  12			AFQT:  58

Highest Rate:  IC3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:   3.8 (3)		Behavior:  3.8 (3)  		OTA:  3.8

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, NUC, KLM, NDSM, SASM w/2*, GCM

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/UNSATISFACTORY PERFORMANCE, authority: NAVMILPERSMAN, Article 3630300.

Chronological Listing of Significant Service Events:

880801:	Enlisted USN from DEP for a term of 4 years.

920701:	Released from active duty and transferred to Naval Reserve having served 3 years, 11 months of active duty and received characterization of service as “Honorable.” Reserve obligation termination date established as 19Dec95.

931008:	Servicemen’s Group Life Insurance Election and Certificate completed and signed by Applicant with duty station of N&MCRC, AMARILLO, TX.

931016:	Attended reserve drill on 931016-931017.

940124:	Commanding Officer notified the Applicant of intended recommendation for discharge under other than honorable conditions by reason of unsatisfactory performance due to failure to drill via certified letter.  Returned undeliverable.

940404:	Record of Discharge from the U.S. Naval Reserve (Inactive) issued reflecting type of discharge as “Honorable” separation authority as 3850300.2a or b., and that an “OTHER THAN HONORABLE” Discharge Certificate was issued.

940405:	Commanding Officer, Navy & Marine Corps Reserves Center, Amarillo, TX.  “SK3 W_ is a selected reserve who drilled his first month at NAVMARCORESCEN Amarillo, TX.   SK3W_’s last known address was in Borger, TX  which is within reasonable commuting distance to NAVMARCORESCEN Amarillo, TX.  He has refused to attend drills, respond to official correspondence, or provide a current home or work address.  SK3 W_ contacted this command on 05January 1994, however after being briefed of options, made no attempt to request transfer to the IRR. SK3 W_ was previously counseled in regard to drill performance on 16October 1993 and 05 January 1994.  By failing to drill, respond to official correspondence, and keeping an up to date recall, he has further demonstrated his complete disregard for his contractual obligations.  It is determined that SK3 W_ has no potential for useful service in the event of mobilization.  It would be in the best interest of the U. S. Navy to discharge SK3 W_ as soon as possible.”

940630:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of unsatisfactory performance due to failure to perform duty assignment satisfactorily and authorized administrative reduction to E-3 upon separation.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19940404 under other than honorable conditions by reason of unsatisfactory performance due to failure to perform duty assignment satisfactorily (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.  The documentation and statements provided by the Applicant were not sufficient to refute the presumption of regularity regarding this case.  The Applicant did not provide sufficient evidence that he requested to return to the IRR status, therefore continuing this drill status, he incurred an obligation to drill with his reserve unit until 19951219.  A characterization of service of under other than honorable conditions is warranted when the member's conduct constitutes a significant departure from that expected of a Sailor.  The Applicant’s service was marred by his failure to participate in scheduled reserve drills.  The Applicant failed to keep his chain of command notified of his current address and therefore did not receive his notification of rights concerning his administrative separation.  By failing to acknowledge his notification of rights for administrative separation, the Applicant waived all rights.  While the Applicant may believe that he was not required to attend scheduled drills and that he was not properly notified of his pending administrative separation, the record is devoid of evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.  

The Applicant’s discharge characterization accurately reflects his service to his country.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity occurred during the Applicant’s enlistment.  Additionally, 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.  Evidence of continuing educational pursuits, employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence of a substance free lifestyle, are examples of verifiable documentation that should be provided to receive consideration for relief, based on post-service conduct.  The Applicant’s evidence of post-service conduct was found not to mitigate the offense for which he was discharged.  Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his discharge.  Representation at a personal appearance hearing is recommended but not required.  

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), effective 05 Mar 93 until 21 Jul 94,  Article 3630300, SEPARATION OF ENLISTED PERSONNEL BY REASON UNSATISFACTORY PERFORMANCE.

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