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NAVY | DRB | 2000_Navy | ND00-00929
Original file (ND00-00929.rtf) Auto-classification: Denied


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

ex-MSSN, USNR-R
Docket No. ND00-00929

Applicant’s Request
The application for discharge review, received 000725, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The applicant requested a documentary record discharge review. The applicant listed the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010329. 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: UNDER OTHER THAN HONORABLE CONDITIONS/UNSATISFACTORY PARTICIPATION IN THE READY RESERVE, authority: NAVMILPERSMAN, Article 3630800.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1. (Equity issue) This former member opines that transportation problems which were not within his control caused his missed drills and sufficiently mitigated his misconduct of record to warrant separation under honorable conditions.

2. (Equity issue) This former member further avers that his UOTHC discharge is to harsh for his misconduct when viewed in light of his otherwise positive overall service record.

3. (Equity issue) This former member finally requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application for a characterization upgrade.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Letter from applicant dated January 5, 2001
Copy of appointment of Veterans Service Organization dated July 8, 1999
Statement in support of application from applicant
Copy of DD Form 149
Copy of Naval Reserve Meritorious Service Medal dated February 21, 1993
Copy of DD Form 214
Two pages from applicant's service record
Character reference dated September 19, 2000
Character reference dated September 21, 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: 881212               Date of Discharge: 940128

 Length of Service (years, months, days):

         Active: 00 09 04
         Inactive: 04 04 28

 Age at Entry: 20                          Years Contracted: 8

 Education Level: 12                        AFQT: 27/34

 Highest Rate: MSSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.67 (3)    Behavior: 3.67 (3)                OTA: 3.60

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/UNSATISFACTORY PARTICIPATION IN THE READY RESERVE, authority: NAVMILPERSMAN, Article 3630800.

 Chronological Listing of Significant Service Events :

88xxxx:  Enlistment contract into the USNR documents acknowledgement of the requirement to participate in 48 scheduled drills and not less than 14 days of annual training per year for 6 years upon completion of initial active duty training.
890221:  Applicant reported for initial tour of active duty for training.

890616:  Applicant released from initial tour of active duty for training with an Honorable by reason of completion of required active service.

901101:  Applicant reported for active duty for training.

910327:  Applicant released from tour of active duty for training with an Honorable by reason of completion of required active service (USMCR) IADT.

931109:  Letter of intent to administratively separate under other than honorable conditions for the failure to participate in reserve training was sent via certified mail, return receipt requested. Applicant receipted for letter by return signature but failed to acknowledge the contents.

931109:  Applicant advised of his rights and having elected having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

940105:  Commanding officer recommended discharge under other than honorable conditions by reason of unsatisfactory participation in the ready reserve. Commanding officer’s comments (verbatim): I know SNM member received enclosure (1), as evidenced by enclosure (5) and the fact that he called me to ask what it all meant. On 4 December 1993, SNM member was in my office wanting to talk to a JAG which he did on 6 December 1993. On or about 15 December 1993 SNM member called me and asked how his admin board processing was progressing. SNM was informed, that until I got enclosures (1) and (2) back from him no arrangements would be made, to date I have not received enclosures (1) and (2) back. It has been almost 2 months since enclosure (1) was delivered and over 30 days since he talked to a lawyer, more that ample time as laid out by enclosure (1). I recommend immediate separation under the Other than Honorable conditions.

940120:  CNP directed the applicant's discharge under other than 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 940128 under other than 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 “transportation problems” is not a sufficient reason to mitigate the applicant’s misconduct. The applicant had an opportunity to explain his missed drills at his time of discharge. The applicant failed to return his election of rights and therefore waived all rights, specifically his right to an Administrative Discharge Board where he would have had ample opportunity to state his case. The applicant missed his required drills, which he knew was his obligation to attend, and the Board therefore finds his discharge characterization equitable as given. Relief is denied.

In response to the applicant’s issue 2, the Board finds that the applicant’s misconduct actually outweighs the positive aspects of his short service time. The applicant’s discharge is accurately characterized as having been served under other than honorable conditions.

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 ample 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. Naval Military Personnel Manual, (NAVPERS 15560C), Change 7, effective 30 Jul 93 until 02 Oct 96, Article 3630800, SEPARATION OF ENLISTED PERSONNEL 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      


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