ex-SA, USN
ND07-00728

Current Discharge and Applicant’s Request

Application Received:  20070504 	Characterization Received:  
Narrative Reason:  UNSATISFACTORY PARTICIPATION IN THE READY RESERVE 	Authority:  MILPERSMAN 1910-158

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1. Had no obligation to drill due to approved transfer to Army Reserve

Decision

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  SECRETARIAL AUTHORITY.

Date:  20071212		Location:  Washington D.C	 Representation:  

Discussion

Issue 1 ().  The Applicant claims that he was properly allowed to transfer from the U.S. Navy Reserve to the U.S. Army Reserve in June 2005, and therefore had no further obligation to drill with his Navy Reserve unit.  The Board determined that the Applicant’s version of events was plausible, and found that his documents supporting his contention that he had served in the Army Reserve and subsequently enlisted in the Army to be credible.  The Board noted that the essential issue was whether or not the Applicant had been properly relieved of his obligation to the Navy Reserve prior to enlisting in the Army Reserve.  While the Applicant supplied no documentation to support his claim that he had sought and received approval from his Navy Reserve unit prior to enlisting in the Army Reserve, the Board found that his version of events was believable and consistent with the available evidence in the record.  His Navy Commanding Officer’s letter to Navy Personnel Command confirms that the Applicant called his Navy unit in response to the proposed notification and briefed it on his status.  While the better practice would have been for the Applicant to return the acknowledgement and election of rights and challenge the proposed separation in writing, the Board found precipitous the command action to separate the Applicant in light of his unusual claim, especially since his claim could have been easily confirmed through official channels.  In addition, although not raised by the Applicant, the Board identified an issue as to whether the Applicant’s discharge was processed in accordance with applicable regulations.  The notice of proposed administrative separation did not advise the Applicant of his right to have the proposal reviewed by a general court-martial convening authority (GCMCA).  This was an error.  In addition, the Commanding Officer indicated in his letter to the Commander, Navy Personnel Command of 20060321 that he had locally separated the Applicant for “unsatisfactory performance” under “MILPERSMAN 1910-700.”  This was also in error in that the reason for the Applicant’s discharge was unsatisfactory participation in the ready reserve under MILPERSMAN 1910-158 (albeit apparently a mere clerical one as the Applicant’s service record indicated the correct reason and provision for discharge).  More significantly, the Separation Authority in the Applicant’s case was Navy Personnel Command (Reserve Enlisted Personnel Section) vice his local unit.  The proposed separation should have been forwarded for decision.  Errors in administrative processing do not render a discharge improper unless, as a result of such errors, there is substantial doubt that the discharge would have remained the same if the errors had not been made.  In the absence of the Applicant’s credible claims, these errors alone would likely not be sufficient to find the discharge improper; however, in light of them the Board determined that the errors contained in the record undermined the presumption of regularity and bolstered the Applicant’s claim that he had sought and received permission to join the Army Reserve.  Based on the available record and the Applicant’s credible submission, the Board did have doubts as to whether the Applicant’s discharge would have remained the same had these errors not been made and had a more thorough review of the facts and circumstances of the Applicant’s status occurred.    

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs 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, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that 

Summary of Service

Prior Service:  NONE
Period of Service Under Review:
Date of Enlistment: 20041021		Years Contracted:  NOT FOUND IN RECORD	Date of Discharge:  20060317
Length of Service:  01  Yrs  04  Mths  27  Dys			Lost Time:  Days UA:    Days Confined:  
Education Level:  *		Age at Enlistment:  *		AFQT:  98*		Highest Rank/Rate:  SA
Evaluation marks (# of occasions):	NOT APPLICABLE	Awards and Decorations (per DD 214):  NOT APPLICABLE

*Extracted from Applicant’s document submission of U.S. Army records

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

20050409:	Applicant enlisted in the U.S. Army Reserve for period of 6 years.
	[Extracted from Applicant’s document submission.]

200504xx:	Applicant had 2 authorized drill absences.

200505xx:	Applicant had 2 authorized drill absences.

20050601:	Applicant commenced active duty with U.S. Army Reserve.
	[Extracted from Applicant’s document submission  (DD 214).]

200506xx:	Applicant had 4 unexcused drill absences.

200507xx:	Applicant had 4 unexcused drill absences.

200509xx:	Applicant had 4 authorized drill absences.

200510xx:	Applicant had 4 authorized drill absences.

200511xx:	Applicant had 4 authorized drill absences.

200512xx:	Applicant had 4 authorized drill absences.

200601xx:	Applicant had 4 unexcused drill absences.

20060113:	Applicant completed active duty with U.S. Army Reserve.
	[Extracted from Applicant’s document submission (DD 214).]

20060123:	Applicant submitted DD Form 368 requesting conditional release from U.S. Army Reserve to join U.S. Army.
	[Extracted from Applicant’s document submission.]

20060201:	Notification of proposed administrative separation from U.S. Navy Reserve for unsatisfactory participation with least favorable characterization of service possible as general (under honorable conditions) sent to Applicant via certified mail.

20060217:	Applicant’s request for conditional release from U.S. Army Reserve to join U.S. Army approved.
	[Extracted from Applicant’s document submission.]

200602xx:	Applicant had 4 authorized drill absences.

20060303:	Navy and Marine Corps Reserve Center received PS Form 3811 acknowledging receipt of administrative separation processing.
	[Extracted from CO ltr to COMNAVPERSCOM dtd 20060321.] 

200603xx:	Applicant had phone conversation with Reserve Center and advised of having joined U.S. Army Reserve and U.S. Army and currently pending deployment.
	[Extracted from CO ltr to COMNAVPERSCOM dtd 20060321.] 

20060316:	Applicant enlisted in the U.S. Army for period of 3 years.
	[Extracted from Applicant’s document submission.]

200603xx:	Applicant had 4 authorized drill absences.

20060317:	Applicant discharged from U.S. Navy Reserve for unsatisfactory participation in the ready reserve with characterization of service as general (under honorable conditions).

Types of Documents Submitted by Applicant and Considered By Board

Related to Military Service:	Service and/or Medical Record:  		Other Records:  

Related to Post-Service Period:  	
	Employment:  			Finances:  			Education: 		
	Health/Medical Records:  		Substance Abuse:			Criminal Records:  	
	Family/Personal Status: 		Community Service:  		References:  		
	
Additional Statements From Applicant:  	From Representative:    		Other Documentation (Describe)       

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 12, effective 5 Aug 2005 until Present, MILPERSMAN Article 1910-158, 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 to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC  20301-4000.  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