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NAVY | DRB | 2002_Navy | ND02-00574
Original file (ND02-00574.rtf) Auto-classification: Denied


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

ex-AN, USNR
Docket No. ND02-00574

Applicant’s Request
The application for discharge review, received 020402, requested that the characterization of service on the discharge be changed to honorable. The Applicant requested a personal appearance discharge review before a traveling panel closest to Detroit, MI. The Applicant designated the American Legion as the representative on the DD Form 293. In the acknowledgement letter to the Applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington, D.C. area and that the Board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030131. 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, as submitted

 1. Missed drills may be excused if they were missed due to circumstances beyon your control. I submitted a request for excuse of missed drills CNAVRES 1570/4 for all missed drills. I should have had the following action available to me - Involuntary recall to active duty for a period not to exceed 24 months combined active duty and ACDUTRA. - If insufficient obligated service remaining to warrant a period of active duty, my enlistment my be involuntarily extended in order to complete the prescribed period of active duty. Why was the attorney that was provided to me, allowed too retired before he finishes my case? He was to have file an appeal on my behalf, but counsel retired the next week, and I was never provided another attorney to help with my appeal. I did ask for another attorney. I have as of 1-31-02 reenlisted in the U.S. Navy. This fall's under the " Wood Case ." - If there is a statute of limitation it should be waived in the interest of justice, and I did ask for a new attorney for my appeal. - My undesirable discharge was inequitable because it was based on one isolated incident - with no other adverse action. "(Also, the Dickson Case No 94-5190 Oct. 31, 1995)"

 2. (Equity Issue) This former member further 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 this application.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Enlistment documents
Copy of DD Form 214, dated July 11, 1984
NAVPERS 1070/613, Administrative Remarks - Stated Other Than Honorable
Discharge and Recommended for Reenlistment, dated March 26, 1990
Request to extend 21 months, dated December 7, 1985
Administrative Remarks - Statement of Understanding, dated March 27, 1984
New Reenlistment Contrat (1-31-2002) (DD Form 4/1)
Certification and Acceptance (DD Form 4/2)
Transfer Orders (1-31-2002)
Excuses for two months of missed drills
Armed Forces I.D.'s
Copies of service record and medical record pages
Detroit Police Department Criminal History Record Check, dated September 23,
2002

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: None
         Active: None

 Period of Service Under Review :
Date of Enlistment: 840327               Date of Discharge: 900326

 Length of Service (years, months, days):

         Active: 00 03 09
         Inactive: 05 08 20

 Age at Entry: 21                          Years Contracted: 6 (21 months extension)

 Education Level: 12                        AFQT: 21

 Highest Rate: AMH3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.35 (4)    Behavior: 3.35 (4)                OTA: 3.35

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 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 :

840327:  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.
840403:  Commenced Active Duty for Training.

 840711:  Released from Active Duty for Training and transferred to Naval Reserve, having served 3 months 9 days and received an "honorable" characterization of service.
851215   Applicant signed 21 month extension to qualify for the Naval Reserve G. I. Bill benefits.

890131   Date of last performance evaluation recorded in Enlisted Performance Record

890601   Certificate appointing Applicant to AMH3.
         [Provided by the Applicant]

890727   NAVPERS 1070/613. Administrative Remarks. Authorized Applicant ’ s transfer to Naval Reserve Personnel Center and assigned to the Individual Ready Reserve (S-1). Member (Applicant) is to be separated with Other Than Honorable Discharge because of unsatisfactory participation in the Naval Reserve at expiration of enlistment.

900326:  NAVPERS 1070/613. Administrative Remarks, stating discharged on this date with an Other Than Honorable discharge by reason of unsatisfactory participation in the Naval Reserve. Authority - MILPERSMAN 3630800 and CNMPC letter NMPC-913 OF 19 Jul 89. Recommended for Reenlistment.

900326   History of Assignments. NRPC entry of Applicant ’ s discharge on this date.

 [Discharge processing package not contained in service record and Applicant did not provide.]

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 900326 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).

 Issues 1: Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the Applicant’s enlistment. While the Applicant may feel that his discharge was inequitable because it was based on one isolated incident, with no other adverse action, to warrant a discharge due to unsatisfactory participation in the Ready Reserve normally constitutes more than an “isolated incident.” The Applicant did not provide any credible documentation to support his claims that he had approval for missed drills or that he had appealed his discharge. The official record, although incomplete, is devoid of evidence that the Applicant was not responsible for his failure to participate in the Ready Reserve, or that he should not be held accountable for his actions. Furthermore, neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment. Clearly the Applicant ’ s discharge characterization did not bar him from reenlistment. The Board notes that according to the documentation provided by the Applicant, he reenlisted in the Naval Reserve in January 2002. Relief denied.

Issue 2: 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 the service. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge. Evidence of continuing educational pursuits, a positive employment record, documentation of community service and certification of non-involvement with civil authorities are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct. After a complete review of the record, including the evidence submitted by the Applicant, the Board determined that the Applicant’s discharge was proper and equitable and that his subsequent reenlistment in the Naval Reserve was found not to mitigate the reason for which he was discharged. Relief denied.


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 additional documentation to support any claims of post-service accomplishments 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 15560A), effective 14 Dec 1989 until 14 Aug 1991, 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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