Author: CAP
Last saved by: Department of the Navy
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Docket No. ND00-00490

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

 ex-EOCA, USNR
Docket No. ND00-00490

Applicant’s Request

The application for discharge review, received 000307, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance hearing discharge review.  The applicant listed a civilian as his representative on the DD Form 293 but subsequently elected the American Legion as his representative.  In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010111.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain:  GENERAL (UNDER HONORABLE CONDITIONS)/UNSATISFACTORY PARTICIPATION IN THE READY RESERVE, authority: NAVMILPERSMAN, Article 3630800.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  THE PERSON PREPARING MY DISCHARGE PROMISED THAT I WOULD RECEIVE A DISCHARGE "EXACTLY AS IF I HAD SERVED MY CONTRACT."  I RECEIVED A GENERAL NOT HONORABLE DISCHARGE.

2.  IF IN ORDER TO RECEIVE AN HONORABLE DISCHARGE I WOULD BE REQUIRED TO SERVE MY CONTRACT, THAN I AM READY AND WILLING.

3.  I DID CONTACT MY NEW DUTY STATION AT BROOKLYN, NY WITHIN 2 WEEKS OF MY ARRIVAL BACK IN NEW YORK STATE MAKING THE UNSAT DUE TO UNSAT PARTICIPATION A FALSEHOOD.  RESPECTFULLY REQUEST RECONSIDERATION AS A SAT MEMBER OF THE CB'S "CAN DO!"

Documentation

In addition to the service record, the following additional documentation, submitted by the applicant, was considered:

American Legion's ltr of comments/recommendation dtd 6 Dec 2000
Copy of DD Form 214 (2 copies)
Applicant's undtd ltr to the American Legion concerning move to New York
American Legion's ltr to Applicant dtd 24Aug 2000
Applicant's Parent ltr dtd Aug 28, 2000 with copy of date book
Beekman Rooming House receipt (8/25 to 9/1) dtd 25 Aug 2000
Beekman Rooming House ltr of 26 Aug 2000 concerning applicant's residence
Congressional correspondence dated Apr 17, 2000
Applicant's letter to Congresswoman S_ K_ dtd Mar 23, 2000

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Active:   None
	Inactive: None

Period of Service Under Review:

Date of Enlistment:  950920		Date of Discharge:  980924

Length of Service (years, months, days):

	Active:    00  05  13
	Inactive:  02  06  22

Age at Entry:  25			Years Contracted:  8

Education Level:  16			AFQT:  99

Highest Rate:  EO3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF		Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  None 

Days of Unauthorized Absence:  None

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/UNSATISFACTORY PARTICIPATION IN THE READY RESERVE, authority:  NAVMILPERSMAN, Article 3630800.

Chronological Listing of Significant Service Events:

951212:	Commenced initial Active Duty for Training under the Sea & Air Mariner ( SAM) Program.

950524:	Released from active duty for training having service 5 months and 13 days and received characterization of service as "honorable".

950920:	Applicant acknowledged the requirements to participate in 43 or 48 (90%) scheduled drills including inactive duty training, perform a minimum of 12 days annual active duty for training within each fiscal years.

980717:	Letter of intent to administratively separate with a General Under Honorable Conditions for the failure to participate in reserve training was sent.  Applicant signed the notification letter.  Missed drills on the 14Mar98,  4Apr98, 5APR98, 2May98, 3May98, 6Jun98, 7Jun98.

980717:	Applicant advised of his rights and elected to waive all rights.

980728:	Commanding Officer, NMCRC Spokane recommended to BUPERS that applicant be discharge with an honorable due to unsatisfactory participation in the Naval Reserve.  "Commanding officer’s comments: (verbatim):  "Attempted to notify member several times to discuss participation requirements.  Member is considered not a mobilization asset.  Respectfully request SNM be honorably discharged."

980828:	BUPERS returned the separation packaged to CO, NMCRC Spokane and advised the separation authority is the Special Court Martial Convening Authority and member should be separated locally.

980924:	Commanding Officer directed applicant’s discharge general (under honorable conditions) and stated “reason for characterizing his service as General is:  Failure to maintain satisfactory drill participation.”

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 980924 with a general (under honorable conditions) for unsatisfactory participation in the Ready Reserve (A).  The Board presumed regularity in the conduct of governmental affairs (B).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

In the applicant’s issue 1, the Board found that the applicant received a General (Under Honorable Conditions) discharge based on his missed drills, which he knew were his requirement to complete.  The Board found that the Commanding Officer had the discretion and ultimate authority to separate the applicant under these conditions.  The applicant states in issue 1 that “the person preparing my discharge promised that I would receive a discharge exactly as if I had served my contract.  I received a general not honorable discharge.”  The Board does not know who the “person preparing” the applicant’s discharge package is, nor did that individual have the authority over the discharge.  No relief will be granted based on this issue. 

In the applicant’s issue 2, the Board does not have the authority to allow the applicant to reenter the service.  Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to re-enlistment.  A request for waiver is normally done only during the processing of a formal application for enlistment.  Relief is not warranted.

Although the applicant alleges in issue 3 that he contacted his new duty station within 2 weeks of his arrival to NY, this has no bearing on the fact that the applicant missed drills on 14Mar98,  4Apr98, 5APR98, 2May98, 3May98, 6Jun98, and 7Jun98.  Additionally, the Board cited his signature and election of rights dated 980717.  The applicant was properly discharged for Unsatisfactory Participation in the Ready Reserve and is deserving of a characterization of general (under honorable conditions) characterization.  Relief is denied.

There is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the Service.  However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (D).  Those factors include, but are not limited to, the following:  evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct.  At this time, the applicant has not provided any documentation of good character and conduct.  Therefore no relief will be granted.  The applicant is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15-years from the date of discharge.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 Dec 1997 until Present, Article 1910-158 (formerly 3630800), Separation by Reason of Unsatisfactory Participation in the Ready Reserve.

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

PART IV - INFORMATION FOR THE APPLICANT

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 Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive.  You should read Enclosure (5) of the Directive 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 Directive 1332.28 and other Decisional Documents by going online at “afls14.jag.af.mil”.  

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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
INDEX:  A8400/A9453/A9221/A9217