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Docket No. ND05-00536

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

 ex-SN, USNR-R
Docket No. ND05-00536

Applicant’s Request

The application for discharge review was received on 20050207.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20050519.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  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: MILPERSMAN, Article 1910-158 (formerly 3630800).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “The discharge is improper because I wasn’t able to fulfill my 6 month contract to upgrade my dental status”

Documentation

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

Applicant’s statement, dated January 28, 2005
Letter from Applicant’s dentist and attachments, dated December 30, 2004 (7 pages)
Applicant’s dental bill and treatment provided, dated April 9, 2004 (3 pages)
Applicant’s service record documents (2 pages)
Enlisted Application & Orders, dated January 24, 2004
Applicant’s dental records (4 pages)

PART II - SUMMARY OF SERVICE
Prior Service (component, dates of service, type of discharge):

	Inactive: USNR (DEP)	930205 - 930914	COG
	Active:   USN			930915 - 970914	Transferred to USNR
	Inactive: USNR		970915 - 000414	To USAR
	Inactive: USAR		000415 - 020829	To USNR-R

Period of Service Under Review:

Date of Enlistment:  020830		Date of Discharge:  040304

Length of Service (years, months, days):

	Active:    None
	Inactive:  01  06  05

Age at Entry:  27			Years Contracted:  6

Education Level:  12			AFQT:  33

Highest Rate:  BMSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF*		Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  AFSM(2), HSM, GCM, NATO(2), NUC, NDSM(2), SSDR(2), MAEA

Days of Unauthorized Absence:  None

*No marks found in service record

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

GENERAL (UNDER HONORABLE CONDITIONS)/UNSATISFACTORY PARTICIPATION IN THE READY RESERVE, authority:  MILPERSMAN, Article 1910-158 (formerly 3630800).
Chronological Listing of Significant Service Events:

040125:	Letter of intent to administratively separate, dated 040127, was sent via certified mail, return receipt requested.  Applicant receipted for letter by return signature on 040128 but failed to acknowledge the contents.  Applicant notified of intended recommendation for separation by reason of unsatisfactory participation in the ready reserve.  Applicant notified that if separation is approved, the least favorable characterization of service possible is general (under honorable conditions).  The Applicant was afforded 30 days to respond to the notification of administrative separation processing.

040226:	Applicant advised of rights and by virtue of his failure to respond to notification, elected to waive all rights.  The record is unclear as to whether the Applicant ever consulted with counsel certified under UCMJ Article 27(b).

040304:	Applicant discharged with a general (under honorable conditions) by reason of unsatisfactory participation in the ready reserve.

040311:	Commanding Officer reported to BUPERS that he discharged the Applicant with a general (under honorable conditions) by reason of unsatisfactory participation in ready reserve.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040304 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).

Issue 1.  Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question.  No such impropriety or inequity is evident during the Applicant’s enlistment.  When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  A general discharge is warranted for behavior not sufficiently meritorious to warrant an honorable discharge.  The Applicant’s service was marred by his failure to meet his contractual obligations of at least 90 percent drill attendance.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy.  Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant contends that his discharge is inequitable because he was unable to fulfill his contract to upgrade his dental status.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contentions regarding his dental status.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  Relief denied.

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 should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided sufficient documentation for the Board to consider.  Relief denied.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code.  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.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

The Applicant remains eligible for a personal appearance hearing, provided an 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 other evidence related to his discharge at that time.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 2002 until Present, MILPERSMAN Article 1910-158 (formerly 3630800), 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, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

		Secretary of the Navy Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-502

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.