ex-SA, USN-R
ND06-00967

Current Discharge and Applicant’s Request:

Application Received:  				20060713
Narrative Reason for Separation:			 in the ready reserve
Character of Service:				
Discharge Authority:				MILPERSMAN 1910-158 and milpersman 1910-304 
Last Duty Assignment/Command at Discharge:	naval reserve CENTER CLEVELAND OHIO

Applicant’s Request:
	Narrative Reason change to: 		NONE requested
	Characterization change to:		
	Review Requested:			
Representation:  					 designated

Decision:

Date of Decision:					20070426
The Discharge shall remain:			
						 in the ready reserve
Regarding propriety, the Board found the discharge:	
Regarding equity, the Board found the discharge:	

Vote (characterization/reason)			/ 
Location of Board:				Washington D.C.
Complete Service Record:				
Complete Medical Record:			
Discharge Package Complete:			

Summary of Service:

Prior Service:
Inactive: 					NONE
Active:   					NONE		               		     
Period of Service Under Review:
Date of Enlistment:  				19990113
Years Contracted:  				        
Date of Discharge:				20010129
Length of Service:				2 Yrs   0  Mos    17 Days
						amount of active and INACTIVE service undetermined 
Time Lost During This Period:			      
						NONE       
			
Education Level:  				NOT FOUND IN RECORD
Age at this Enlistment:  				32
AFQT:  						NOT FOUND IN RECORD
Highest Rate/Rank:				SN    

Performance Evaluation Averages (number of marks):
Performance/Behavior/OTA: 			3.0(1)/3.0(1)/3.00
	
Awards and Decorations (as listed on the DD Form 214):
NOT APPLICABLE     

Service Record Entries Related to Characterization of Service or Narrative Reason for Separation

990908:	Applicant’s assignment to ACU-2 LCM 8 DET 2809 in a drill pay status terminated effective 990901 for inability to maintain satisfactory attendance.  Applicant not recommended for reaffiliation.  Transferred to Standby Reserve in a non-pay status.

010129:	Discharged this date for Unsatisfactory Performance in the Ready Reserve with characterization of service as General (Under Honorable Conditions).

Medical Record Entries Related to Characterization of Service or Narrative Reason for Separation

None.

Elements of Discharge: 
Discharge Process:				NOT FOUND IN RECORD
Date Notified:					
Narrative Reason(s):				
Least Favorable Characterization:			
Record Supports Narrative Reason:			PRESUMED
Date Applicant Responded to Notification:		     
Rights Elected at Notification: 			
Consult with Counsel			
Administrative Board			
Obtain Copies	  			
Submit Statement(s)			
GCMCA Review				
Board Date:					     
Finding of Administrative Board:			
						
Recommendation of Commanding Officer (date):	NOT FOUND IN RECORD (20010105 – extracted from CNPC msg)
Discharge directed by (date):			CNPC (20010124)
Narrative reason directed:				 in the ready reserve
Characterization of directed:			 (UNDER HONORABLE CONDITIONS)
Date Applicant Discharged:			20010129 

Additional Information Considered by Board

Type of documentation submitted by the Applicant and considered by the Board
       
       	Document Type					#Pages
       Related to Period of Service:
	Service/Medical Record:				2
	Other Period of Service:				0
       Related to Post-Service Period:
	Community Service:				0
	Education:					0
	Employment:					0
	Health/Medical:					0
	Character Statements:				0
	Criminal Records Checks:				0
	Additional Statements from Applicant:		0
        Other Documentation	 (Describe Below)		0

        Total Number of Pages:				2

       Description of Other Documentation:  None.
            

Discussion

Propriety and Equity
There is a presumption of regularity in the conduct of Government affairs.  This presumption will be applied in any review unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, Medical Record Entries, Elements of Discharge and evidence submitted by the Applicant, the Board found the Applicant’s discharge proper and equitable.

Applicant’s Issues (as summarized by the Board):
1.  Unable to attend drills due to work.
2.  Lost interest because Reserve classroom work was not productive.

Acceptance of Applicant’s Issues:
The Board accepted Issue(s) 1-2 for consideration.  

Issue 1 (Equity).  The Applicant does not dispute that he did not perform required drills.  Civilian employment requirements that conflict with military drill obligations, do not, by themselves, excuse absences from scheduled drills.  Nothing in the record, nor submitted by the Applicant, indicates that the Applicant’s absences were excused.  Therefore, the Board determined that the discharge was equitable.  Relief is not warranted on this issue.

Issue 2 (Equity).  The Applicant’s loss of “interest” in the subject matter of his drills is not a justification for his failure to perform in a satisfactory manner.  The Applicant’s statement supports the conclusion that he willfully and intentionally failed to honor the terms of his contract with the Navy.  Relief is not warranted on this issue.

Minority Opinion

None.

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 26, effective 04 January 2000 until 21 Aug 2002, MILPERSMAN Article 1910-158 (formerly 3630800), Separation by Reason of Unsatisfactory Participation in the Ready Reserve.

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 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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  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:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the 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.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his 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 Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  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 Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’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 Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board 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 subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, 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 “PTSD.”  Only the Board for Correction of Naval Records can grant this type of narrative reason change.  

Automatic Upgrades - 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 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 may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  

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 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.  

Board Membership:  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