ex-FN, USN-R

Current Discharge and Applicant’s Request

Application Received: 20100120
Characterization of Service Received: 
Narrative Reason for Discharge: 
Authority for Discharge: MILPERSMAN 

Applicant’s Request:	Characterization change to:	
	Narrative Reason change to:	

Summary of Service

Prior Service:
Inactive:	NONE		Active:	

Period of Service Under Review:
Date of Current Enlistment:  20020228	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20050330	Highest Rank/Rate:  SN
Length of Service:
	Inactive:	 Year(s)     Month(s)   20 Day(s)
	Active	 Year(s)     Month(s)   13 Day(s)
Education Level:  	AFQT:  53
Evaluation Marks:	Performance:  3.0 (2)	Behavior:  3.0 (2)	OTA:  3.00

Awards and Decorations:  

Periods of UA/CONF:  

NJP:  	SCM:  	SPCM:  	    CC:  	Retention Warning Counseling:  

Types of Documents Submitted/reviewed

Related to Military Service:
	DD 214:		Service/Medical Record:		Other Records:	

Related to Post-Service Period:
	Employment:		Finances:		Education/Training:	
	Health/Medical Records:		Rehabilitation/Treatment:		Criminal Records:	
	Personal Documentation:		Community Service:		References:	
	Department of VA letter:		Other Documentation:	
		Additional Statements:
	From Applicant:		From/To Representation:		From/To Congress member:	

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 
4 August 2005, 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.

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

Applicant’s Issues

1.	Nondecisional issues: The Applicant seeks a change in characterization of service at discharge to Honorable and a change in Re-Code in order to re-enlist in the reserve component of the U.S. Navy.  

2.	Decisional issues: The Applicant contends that his discharge action was improper and inequitable.

Decision

Date:  20110609	        	Location:  Washington D.C.	Representation:  

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

Discussion

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted.  In reviewing discharges, the NDRB presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Applicant identified one decisional issue to the NDRB.  In addition, the NDRB completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure his discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included no retention warning counselings, no non-judicial or judicial punishments, and no civilian convictions.  The Applicant enlisted without requirement for any waivers to naval enlistment and procurement standards.  Upon discharge, the Applicant had completed three satisfactory years of an eight-year reserve component enlistment contract.

The Applicant enlisted in the Naval Reserve as a non-prior-service accession; he drilled with his assigned unit for two and a half years and was in a satisfactory drill status.  Due to family and work problems related to his wife’s on-going undiagnosed medical issues, the Applicant requested transfer to the IRR.  The unit commander approved the Applicant’s request on 20 May 2004 and the Applicant was transferred.   On 27 January 2005, Commanding Officer, Naval Reserve Personnel Center disapproved the Command’s action to transfer the Applicant to the IRR for failing to meet the Initial Active Duty Training (IADT) equivalency requirement before being transferred.  The command was directed to rejoin the Applicant and review for administrative separation vice transfer to the IRR.  On 17 Feb, the Applicant was notified via certified mail that he was being recommended for administrative separation pursuant to Article 1910-402 of the Naval Military Personnel Manual (MILPERSMAN) - Unsatisfactory Participation in the Ready Reserve.  The specific basis for discharge action was not having completed the required 84 days of IADT equivalency within the prescribed 36-month period.  After waiting the requisite 30 days for a written response from the Applicant, the command processed him for discharge with a General (Under Honorable Conditions) characterization of service.

(Nondecisional Issue).  The Applicant seeks a change in the characterization of his service at discharge to Honorable and a change in Re-Code in order to re-enlist in the reserve component of the U.S. Navy.  The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces.  As such, this issue does not serve to provide a foundation upon which the Board can grant relief.  Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities or access to Department of Veterans Affairs benefits.  Regulations strictly limit the NDRB’s review to a determination of the propriety and the equity of a discharge.  Moreover, the NDRB is not authorized to change a re-entry code as the Applicant has requested.  For changes to a re-entry code, the Applicant must petition the Board for Correction of Naval Records using DD Form 149.  When requesting a change, the Applicant should provide as much documentation as possible in support of the reason for change.  The BCNR’s address is:  Board for Correction of Naval Records, 2 Navy Annex, Washington, DC 20370-5100.  Further information can be found online at http://www.donhq.navy.mil/bcnr/bcnr.htm.

(Decisional Issue) ()  .  The Applicant contends that his discharge action was both improper and inequitable.  The Applicant requested and was approved for transfer to the IRR - in writing - by his command.  On 20 May 2004, the Applicant was transferred to the IRR from his drilling reserve status.  The unit provided copies of their transfer action to Commander, Naval Reserve Personnel Command.  On 27 January 2005, the reserve personnel command notified the unit that they had improperly transferred the Applicant; they noted that the Applicant had not achieved his required 84 days of drill equivalency before being authorized a transfer to the IRR.  They further directed that the Applicant be re-accessed to a drilling status and processed properly for administrative discharge for Unsatisfactory Performance.  The Applicant was notified, by certified return receipt mail, of the proposed separation for unsatisfactory participation in the Navy Reserve.  The notification of proposed separation and the Applicant’s election of rights were mailed to the Applicant’s official home address contained in his service record and were receipted for at that address.  Based on the available documentation in the Applicant’s service record, the Applicant did not respond to the command’s notification nor did he elect his rights to an administrative board hearing procedure, to consult with a qualified counsel, or to submit a written statement to the Separation Authority.  

The evidence of record documents that the Applicant requested transfer to the IRR due to family medical problems; he was not attempting to escape any legal actions against him for military or civilian misconduct.  Furthermore, he was a satisfactory participant in the drilling reserve with no misconduct of record while in service, no retention counseling warnings, and was fully progressing in his service.  The command agreed with the Applicant’s situation and approved his request for transfer.  However, nine months later, when notified that the command had improperly separated the Applicant, they made no effort to contact the Applicant in person nor did they make any effort to personally explain the error that was made.  The command took no proactive steps to contact the Applicant other than to send a notification of administrative discharge via certified mail to correct the administrative error.  The error was not made by the Applicant, but was made by his command; as such, an effort to contact the Applicant and explain the problem was a leadership imperative.

After a thorough review of the official record, supporting documents, facts, and circumstances unique to this case, the NDRB discerned an impropriety in the discharge action and characterization of the Applicant’s service.  By a unanimous vote, the NDRB determined that relief is warranted and that the characterization of the discharge shall be upgraded to Honorable - which more accurately reflects the Applicant’s overall conduct and performance during his service.

The Applicant did not seek a change to the narrative reason and separation code on his DD Form 214.  However, in conjunction with the Board’s determination of impropriety regarding the Applicant’s administrative separation and characterization of service as General (Under Honorable Conditions), the NDRB determined that the Applicant’s narrative reason for separation and corresponding separation code no longer reflect accurately his discharge.  In cases where no other reason for separation set forth in the Naval Military Personnel Manual is appropriate, the Secretary of the Navy has the authority to direct the separation of a member prior to the expiration of their term of service.  There is no other narrative reason for separation that accurately describes the reason the Applicant was separated; therefore, the NDRB determined that the reason for the Applicant’s discharge shall change to Secretarial Authority.  RELIEF WARRANTED.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, and discharge process, the Board found the discharge was improper.  Therefore, the awarded characterization of service shall   and the narrative reason for separation shall change to SECRETARIAL AUTHORITY. The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of  discharge.  The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews and Post-Service Conduct.  

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe 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:  After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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.  There are veterans organizations such as the American Legion and the Disabled American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their 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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB.  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 NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the NDRB’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 BCNR can make changes to reenlistment codes.  Additionally, the NDRB 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, 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 other medical related reasons.  Only the BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct:  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  Outstanding post-service conduct, 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, is considered during Board reviews.  Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle.   The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate  in-service misconduct was an aberration and not indicative of the member’s overall character.

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 special 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.  The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership:  The names and votes of the members of the NDRB 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