ex- BM2, 

Current Discharge and Applicant’s Request

Application Received: 20210301
Characterization of Service Received:   
Narrative Reason for Discharge:   UNSAT PARTICIPATION IN READY RESERVE
Authority for Discharge:   MILPERSMAN 1910-158 [UNSATISFACTORY PARTICIPATION IN THE READY RESERVE] 

Applicant’s Request:	Characterization change to:	
Narrative Reason change to: NONE REQUESTED
Reentry Code change to: NONE REQUESTED

Summary of Service

Prior Creditable Service:
Inactive:	 	            	Active:	20030728 - 20070727  

Period of Service Under Review:
Date of Enlistment:  20030602	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20110511	Highest Rank/Rate:  BM2
Length of Service:    Year(s)    Month(s)  10  Day(s)
Education Level:  	AFQT:  56
Deployment/Operation: 

Evaluation Marks (# of occasions):  Performance/Proficiency: 3.6 (3)   Behavior/Conduct: 3.0 (3)   OTA: 3.57 
Fitness Reports: 

Awards and Decorations (per DD 214):	NDSM GWOTSM GWOTEM SSDR NAVY "E" LoC GCM 

Periods of UA:  NONE
Periods of CONF:  NONE
Other Time Lost per DD214:  NONE

NJP:      SCM:      SPCM:      CIVIL ARREST:      CC:  

Retention Warning Counseling:  

NDRB Documentary Review Conducted (date):	20181231
NDRB Documentary Review Docket Number:	ND18-00464
NDRB Documentary Review Findings:		Proper as issued and that no change is warranted.

Types of Documents Submitted/reviewed

	DD 214:		Service/Medical Record:		Other Records:	
	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:	
 
Types of Witnesses Who Testified

	Expert:  			Character:    

	Witness E-1:			Witness C-1:	
	Witness E-2:			Witness C-2:

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560D), Change 26, effective 3 April 2009 until 11 January 2013, MILPERSMAN Article 1910-158, SEPARATION BY REASON OF UNSATISFACTORY PARTICIPATION IN THE READY RESERVE.

B.  Secretary of the Navy Manual 5420.1 of 29 September 2020 (Standards for the execution of the Naval Discharge Review Board).

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

Applicant’s Issues

1.	The Applicant contends his post-service conduct warrants consideration for an upgraded discharge characterization. 
2.	The Applicant contends his discharge is improper because he has no history of misconduct, negative performance, and because he was never informed of the Navy’s intent to administratively separate him for missing drills.
3.	Board Issue for a change to the Narrative Reason for Discharge.

Discussion

Date:  20220112		Location:  WASHINGTON D.C.	Representation:  

The Naval Discharge Review Board (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 Board 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 Board completed a thorough review of the circumstances that led to the discharge and the discharge process to ensure the pertinent standards of equity and propriety were met.

The Applicant’s record of service included no retention warning counseling and no misconduct resulting in nonjudicial punishment or court-martial.

:  The Applicant contends his post-service conduct warrants consideration for an upgraded discharge characterization.

The Applicant seeks an upgraded discharge characterization because he feels his post-service conduct warrants the Board’s consideration.  The NDRB considers 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.  The Applicant provided a personal statement, evidence of continuous employment, and a college transcript.  However, post-service conduct does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct provides a basis for a more thorough understanding of the performance of the Applicant during the period of service that is the subject of the discharge review.  Although the Board found merit in the Applicant’s post-service, it was insufficient as a sole basis to grant relief.  

Issue 2:  The Applicant contends his discharge is improper because he has no history of misconduct, negative performance, and because he was never informed of the Navy’s intent to administratively separate him for missing drills. 

The Applicant seeks an upgraded discharge characterization due to the fact he has no prior misconduct or negative performance evaluations while on either active duty or as a reservist and because he was never notified of the Navy’s intent to administratively separate him.  The record shows the Applicant served four years on active duty and roughly three years in the reserves where the Applicant accumulated multiple positive evaluations to include an Early Promote recommendation and a Good Conduct Medal.  While in good standing with a reserve unit based in Annapolis, Maryland, the Applicant requested, through his immediate chain of command, to transition to the Individual Ready Reserve (IRR).  The Applicant claims his request was granted by his Chief Petty Officer and thus stopped attending drill.  This administrative action was not captured by his command because the Applicant was listed as an “unexcused absence” from August 2010 through February 2011 when, unbeknownst to the Applicant, he was administratively separated for unsatisfactory participation in the reserves.  The Board conducted an extensive review of the record to determine what, if any, information would substantiate the Applicant’s contention that he was never notified of the Navy’s intention to separate him.  The record showed that his Command sent an Acknowledgement of Rights via certified mail to 1 Sterling Court, Hampton Virginia, to inform the Applicant of the Command’s desire to separate him due to his inability to maintain satisfactory drill attendance.  In accordance with MILPERSMAN 1910-408, the Applicant has 30 days from when the notice is received to respond or, if no response is received, the separating command can consider such inaction as a waiver of rights.  The Applicant’s Official Military Personnel File (OMPF) contains a certified mail receipt that has a tracking history beginning on 19 February 2011 through 28 February 2011. The Address that is listed on the certified mail receipt, 1 Sterling Court, Hampton Virginia, 23669, is an old address that the Applicant moved from in 2008. Additionally, the Postal Service tracking history shows that the Acknowledgement of Rights was “undeliverable as addressed” with a subsequent note of “moved, left no address”.  The parcel was then returned to the Applicant’s chain of command, unsigned, and not receipted for, with no discernable further action taken.  As a result, the Board identified sufficient evidence to support the Applicant’s claim that he never received notice of the Navy’s intent to separate him.  

An Honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for naval personnel.  A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record.  An Under Other Than Honorable Conditions discharge is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service.  

In this case, the Board found the Applicant’s service generally meets the standard of acceptable conduct and performance for naval personnel.  In making its determination, the Board considered the totality of the Applicant’s service including the events leading to his missed drills, his overall service which included his enlistment Proficiency and Conduct marks of 3.6 and 3.0, and by his earning a Good Conduct Medal.  To best understand the circumstances surrounding the Applicant’s separation, the Board heard his testimony and considered his written statement, supporting evidence, and the information resident within his Official Military Personnel File (OMPF).  The record shows the Applicant had misconduct free service up to the point that he was listed as an unexcused absence from his reserve unit.  The Applicant believed he had been transferred to the IRR and that he was no longer required to attend drill.  After accumulating multiple unexcused absences, and in accordance with the MILPERSMAN, the Applicant’s command began administrative separation proceedings due to his unsatisfactory participation.  On or about 17 February 2011 the Applicant’s Acknowledgement of Rights was sent via certified mail to an address in Hampton Virginia that he had not occupied since 2008.  On 28 February 2011, the Applicant’s Acknowledgement of Rights was returned to his command as undeliverable due to the Applicant having moved to Maryland.  Additionally, the certified mail receipt has no signature of receipt or other distinguishing marks to support that the Applicant or his representative ever receipted for the mail.  Thus, the Board came to the conclusion that the Applicant was not properly notified and thus was not aware he was the subject of administrative separation proceedings.  Consequently, the Board found it appropriate to grant an upgraded discharge characterization and commensurate narrative reason for discharge. 

Issue 3: Board Issue for a change to the Narrative Reason for Discharge.

The Board found a change to the Narrative Reason for Separation to Secretarial Authority was authorized and warranted.  The NDRB has broad authority to review Department of the Navy discharges.  In accordance with SECNAVMAN 5420.1, ¶ 214 (Review on Motion of the NDRB) the NDRB may initiate a Discharge Review even without an Applicant’s request up until the discharge date exceeds 15 years.  The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis, and if such a review reveals an impropriety or inequity, relief is in order.  Further, the NDRB does not require an applicant to make an express or implied contention; specifically, under ¶ 211 (Applications) an “applicant is encouraged, but not required, to identify an issue or issues as pertaining to the propriety or the equity of the discharge.” Thus, under ¶ 212 (Procedural Rights of the Applicant) the NDRB will consider that a request for review from an applicant who does not have an Honorable Discharge will be treated as a request for a change to an Honorable Discharge.  Similarly, an applicant may request a specific change in the narrative reason for separation.  If an applicant does not request a specific change in the reason for discharge, the Board will presume that the request for review does not involve a request for change in the reason for discharge.  However, this presumption does not waive “the NDRB’s responsibility to examine the propriety and equity of an applicant’s discharge, the NDRB will change the reason for discharge if such a change is warranted.”  Although highlighting the NDRB’s authority to review and change the narrative reason for discharge, the Board noted that “an applicant may not receive a less favorable discharge than that issued at the time of separation.” ¶ 207 (Objective of Review). 

Consequently, the Board held that it is authorized to make a change to the narrative reason for discharge; reasserted all the reasons stated above for warranting a change to the characterization of service, and summarized the following considerations concerning the change to the narrative reason for discharge.  Specifically, the Board held that the narrative reason for separation should be Secretarial Authority rather than Unsatisfactory Participation.  Again reasserting all the reasons stated above, the Board considered the totality of the Applicant’s service inclusive of his alleged missed drill periods, and came to the conclusion that the Applicant was not properly notified and thus was not aware he was the subject of administrative separation proceedings.  In essence, the Board found that the basis for the Service Member’s separation should be Best Interest of the Service/Secretarial Authority.  

Decision

After a thorough review of the available evidence, to include the Applicant’s issues, summary of service,  record entries, and discharge process, the Board found .  Therefore, the awarded characterization of service shall  HONORABLE, the narrative reason for separation shall  SECRETARIAL AUTHORITY with a corresponding separation code of JFF, and the reentry code shall  RE-1.  The Applicant is not eligible for further reviews by the NDRB.  The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149.  

ADDENDUM:  Information for the Applicant

Additional NDRB Reviews: After receiving a NDRB Document Review, an Applicant remains eligible for a Personal Appearance/Telephonic Hearing if the application is received by the NDRB within 15 years of the Applicant’s date of discharge.  The Applicant can provide documentation to support any claim(s) related to their discharge as well as evidence of post-service accomplishments.  Representation at a personal appearance hearing by an Attorney (or Advocate) 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.  However, if you have been discharged for more than 15 years, already had a personal appearance hearing, or otherwise exhausted your opportunity to be heard by the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490, or http://www.secnav.navy.mil/mra/bcnr/Pages/default.aspx for further review.

Appeal Procedures on NDRB Decision: If you contest the NDRB’s decision in your case AND you already contested the NDRB’s previous decision at a Personal Appearance Hearing or otherwise exhausted your opportunity before the NDRB (or it has been more than 15 years since your discharge), the Applicant may petition the Board for Correction of Naval Records (BCNR), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490, or http://www.secnav.navy.mil/mra/bcnr/Pages/default.aspx for further review.  The BCNR is the highest level of administrative review within the Department of the Navy/Marine Corps to correct errors or injustices to member’s records.

Complaint Procedures on Format: If you believe the decision in your case is ambiguous, 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 (JSRA), OUSD (P&R) PI-LP, The Pentagon, Washington, DC  20301-4000.  You should read Enclosure (5) of the DoD Instruction 1332.28 before submitting such a complaint.  This complaint procedure does not permit a challenge on the merits of the NDRB’s decision; the JSRA is designed solely to ensure that the NDRB decisional documents meet applicable requirements for clarity and responsiveness.  Therefore, if you are contesting the merits of the NDRB’s decision and already had a NDRB personal appearance hearing or otherwise exhausted your opportunities before the NDRB, the Applicant may appeal/petition the Board for Correction of Naval Records (BCNR), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490, or http://www.secnav.navy.mil/mra/bcnr/Pages/default.aspx for further review.

Service [VA] Benefits: The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB.  The NDRB has no authority to upgrade a discharge for the sole purpose of facilitating access to VA benefits.  Regulations limit the NDRB’s review solely to a determination of the propriety, equity, and clemency of a discharge.  Consequently, the Applicant should petition the VA, which determines eligibility for post-service benefits.  The VA conducts its own determination of eligibility based on service records and input from an Applicant upon their request.  Therefore, if the NDRB grants a change to a discharge, the NDRB will notify the Commander, Navy Personnel Command or Commandant of the Marine Corps that the DD 214 be corrected as appropriate; however, it is the Applicant’s responsibility to ensure these changes are incorporated into the record by the respective Service Headquarters.  Further, it is the Applicant’s sole responsibility to submit these changes to the VA for a determination of eligibility for VA Benefits.  Finally, the Applicant should refer to the Veterans Administration website (https://www.va.gov/) for information regarding VA benefits and healthcare.  Additionally, to find the nearest VA office to receive assistance with determining VA eligibility/access, the Applicant should refer to https://www.va.gov/find-locations.

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: The NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code.  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-Traumatic Stress Disorder and/or Traumatic Brain Injury: For all claims involving PTSD and/or TBI, the NDRB’s review implemented the guidance set forth in the SECDEF Memorandum of 3 September 2014 (Supplemental guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder).  In accordance with U.S. Code, Title X, Section 1553 (d)(1) & (d)(2), the NDRB included a member who is a physician, clinical psychologist, or psychiatrist and accorded the case sufficient priority to achieve an expedited resolution and a final decision.  If the Applicant’s claim of PTSD/TBI was based in whole or in part on sexual trauma, intimate partner violence, or spousal abuse, the NDRB obtained a review by a psychiatrist, psychologist, or social worker with training on mental health issues associated with PTSD/TBI or other trauma.  

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 that 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.

Military Sexual Trauma: The Department of Veterans Affairs (VA) uses the term "military sexual trauma" (MST) to refer to experiences of sexual assault or repeated, threatening sexual harassment experienced while on federal active duty, active duty for training, or inactive duty training.  To get confidential one-on-one help please contact the MST Coordinator at your nearest VA Medical Center or Call Safe Helpline at 1-877-995-5247 or visit www.mentalhealth.va.gov/msthome.asp.

Reporting Military Sexual Trauma: To report a military sexual trauma, you can make an anonymous report to the Naval Criminal Investigative Service (NCIS) by Text or Online.  The NCIS Tip Line provides service members, veterans and civilians a safe, discreet and ANONYMOUS option to report criminal and force protection threats within the USN and USMC without concerns of retaliation.  To report a crime by Text: Text 274637 (CRIMES); Type “NCIS” at the top of the message; and include as much detail as possible to ensure your tip can effectively be investigated.  To send your ANONYMOUS Tip via the online, go to https://www.tipsubmit.com/webtipsNAV.aspx?AgencyID=840.

Suicide Prevention: Veterans in emotional crisis or their loved ones can call the free and confidential Veterans Crisis Line at 1-800-273-8255 (then press 1); or chat online at http://www.veteranscrisisline.net, or send a text message to 838255 to connect with a caring, qualified Veteran Affairs Responder who can deal with any immediate crisis.