ex-SH2, USN

Current Discharge and Applicant’s Request

Application Received: 20111011
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MILPERSMAN 

Applicant’s Request:	Characterization change to:	
	Narrative Reason change to:	NON-RETENTION ON ACTIVE DUTY

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	19990424 - 19990505  	Active:		19990506 - 20040429  

Period of Service Under Review:
Date of Current Enlistment:  20040430	Age at Enlistment:  
Period of Enlistment:   Years  13 MONTHS Extension
Date of Discharge:  20100829	Highest Rank/Rate:  SH2
Length of Service:   Year(s)     Month(s)   00 Day(s)
Education Level:  	AFQT:  36
Evaluation Marks:	Performance:  4.2 (5)	Behavior:  3.6 (5)	OTA:  3.80

Awards and Decorations (per DD 214):	,  (3), , , ,  (4),  (4), EAWS, ESWS 

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.  Navy Military Personnel Manual, (NAVPERS 15560C), Change 11, 20 June 2005 until Present, Article 1910-104, SEPARATION BY REASON OF EXPIRATION OF ACTIVE OBLIGATED SERVICE (EAOS).

B.  Navy Military Personnel Manual, (NAVPERS 15560C), Change 11, 20 June 2005 until Present, Article 1910-050, ENLISTED INVOLUNTARY SEPARATION PAY (NON-DISABILITY) RESERVE REQUIREMENTS AND OBLIGATIONS

C.  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
 
Decisional issue: The Applicant contends that the narrative reason for his separation, as specified on his DD Form 214, is incorrect and should read “Non-Retention on Active Duty.”

Nondecisional Issue: The Applicant seeks payment of separation pay, contending that he complied with all requirements of the Perform to Serve (PTS) program when he sought reenlistment.

Decision

Date:  20120126	               	Location:  Washington D.C.	Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  ,    
    					                   (INVOLUNTARY DISCHARGE - LBK).

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 (propriety of the Narrative Reason for Separation) for the NDRB’s consideration; additionally, the NDRB conducted a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure the discharge met the pertinent standards of both equity and propriety.

The Applicant’s enlistment record reflects entry into military service at age 19.  The Applicant enlisted on an initial contract for 4 years with a 12-month extension under a Ships Serviceman “A” school guarantee.  The Applicant completed this enlistment period Honorably and was immediately reenlisted under the Selective Training and Reenlistment (STAR) program on a new 4-year enlistment contract.  During this second enlistment, the Applicant executed a 13-month extension agreement in order to have sufficient obligated service to execute Permanent Change of Station orders.  This extension carried the Applicant’s enlistment contract forward to an expiration of service on 29 July 2009.  Missing from the record is a subsequent extension of enlistment, which was executed in order to allow the Applicant to deploy as an Individual Augmentee to Guantanamo Bay, Cuba under contingency support temporary additional duty orders (BUPERS Orders P 130211Z Apr 09).  The Applicant completed this one-year assignment with the Joint Detention Center Group, Joint Task Force GITMO and returned to his parent command.  The Applicant was discharged from active duty on 29 August 2010; he received an Honorable characterization of his service and a Narrative Reason for Separation of Completion of Required Active Service.  Additionally, he received an RE-R1 reenlistment code (recommended for preferred reenlistment).  The Applicant’s record of service during his current enlistment period reflects no NAVPERS 1070/613 retention-counseling warnings and no nonjudicial or judicial punishments and an overall trait average of 3.80 based on his five performance evaluations received during the last enlistment contract.

(Decisional Issue) (Propriety/Equity)  PARTIAL RELIEF WARRANTED.  The Applicant contends that the narrative reason for his separation, as specified on his DD Form 214, is incorrect and should read “Non-Retention on Active Duty.”  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.  In consideration of his issues and in rebuttal of the presumption of regularity, the Applicant submitted copies of his correspondence with his command’s Career Information Program Advisor, his contingency support orders, and his signed immediate reenlistment contract for a three-year obligation with the United States Navy Reserve (3 years IRR for PTS full Separation Pay) effective 20100829.

The Applicant reenlisted after his first honorable enlistment under the STAR program.  He extended this second enlistment twice in order to have obligated service to execute orders.  During this enlistment period, he completed a successful contingency deployment.  While deployed in support of contingency operations, the Applicant requested reenlistment, in-rate, under the Navy’s PTS Program.  Additionally, the Applicant completed and passed the SH1 exam.  Following numerous 

correspondences with the Enlisted Community Manager, the Applicant accepted that his rate was overmanned and he acknowledged his willingness to accept reenlistment in a new rate under a rating conversion.  Unfortunately, the Applicant was not accepted for reenlistment due to unavailability of billets in rate, coupled with the closure of rating conversion options.  The Applicant redeployed to his home station on or about 22 July 2010 and began the transition process.  During his transition process, his command was deployed, so he was shepherded through the separation process by the Transient Personnel Unit (TPU).  On 12 August 2010, the TPU completed an Immediate Reenlistment for three years of obligated service in the Navy Reserve (IRR) for PTS full separation pay.
 
The Applicant’s DD Form 214 documents that he was discharged on 29 August 2010; however, he did not receive his DD Form 214 until it was completed on 07 October 2010 (40 days after his discharge).  The Applicant contends that this occurred because the Personnel Support Activity did not have the necessary documentation from his command (deployed) to complete his DD Form 214.  As such, the Applicant received his DD Form 214 in the mail with the Member’s Signature Block signed “Signature Unavailable.”  The Applicant’s DD Form 214 reflects an Honorable discharge due to Completion of Required Active Service with a separation code of “KBK” - Voluntary Discharge, Completion of Required Active Service upon expiration of enlistment and fulfillment of military service obligation.  

Based on a detailed review of the Applicant’s service record, the additional documentation provided, and the unique issues related to this discharge action, the NDRB determined that the Applicant was not properly separated; as such, partial relief is warranted.  The Applicant was separated involuntarily, not voluntarily.  The Applicant’s command recommended him for preferred reenlistment (RE code: RE-R1).  Accordingly, the Applicant requested reenlistment within the PTS program; when his rating was determined to be overstaffed (118%), he voluntarily accepted consideration for reenlistment with a rating conversion, but was denied.  Additionally, when denied reenlistment, the Applicant executed a 3-year obligation with the Navy Reserve (IRR), as required by the PTS program, in order to complete his eligibility for full separation pay.  Given the action of the Applicant, coupled with his command’s recommendation, the NDRB determined that the Applicant was involuntarily separated.  As such, the correct Narrative Reason for Separation on the DD Form 214 should be Completion of Required Active Service, with a separation code of “LBK” - Completion of Required Active Service, involuntary discharge with transfer to the Naval Reserve, full separation pay.  In response to the Applicant’s contention that his narrative reason should be Non-Retention on Active Duty, this narrative reason applies when a member is not recommended for continued active duty because of failure to meet minimum retention standards (includes rate conversion and failures to meet high-year tenure requirements) and receives a reenlistment code of RE-3M, RE-4, or RE-6.  This narrative reason is not applicable to the Applicant.    
 
(Non-decisional Issue)  The Applicant seeks payment of separation pay, contending that he complied with all requirements of the PTS program when he sought reenlistment.  Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge; the NDRB has no authority to correct separation pay matters.  As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief.  The NDRB is not authorized to correct pay related matters, however, the Board for Correction of Naval Records (BCNR) is.  The Applicant should petition the BCNR using DD Form 149 regarding this issue once his DD Form 214 is reissued by the Commander, Navy Personnel Command.  When requesting the correction, the Applicant should provide as much documentation as possible to support his request petition for redress.  The address is: Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490.  Further information can be found online at http://www.donhq.navy.mil/bcnr/bcnr.htm.  

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, additional supporting documentation submitted by the Applicant, and the discharge process, the NDRB determined that the discharge action was improper.  Therefore, the awarded characterization of service shall remain HONORABLE and the narrative reason for separation shall remain COMPLETION OF REQUIRED ACTIVE SERVICE.  However, the Separation Code shall change to “LBK.”  The Applicant remains eligible for a Personal Hearing until 15 years from the date of his discharge.  

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