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NAVY | DRB | 2005_Navy | ND0501410
Original file (ND0501410.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-ETSN, USNR-R
Docket No. ND05-01410

Applicant’s Request
The application for discharge review was received on 20050808. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. The Applicant requests a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060316. 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 and reason for discharge shall not change. The discharge shall remain General (Under Honorable Conditions) by reason of unsatisfactory participation in the Ready Reserve .
PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“APPLICANT REQUESTS AN UPGRADE OF DISCHARGE FROM “GENERAL, UNDER HONORABLE CONDITIONS” TO “HONORABLE.” APPLICANT INTENDS TO RE-ENLIST, SERVE TWO YEARS ON ACTIVE DUTY AND THEN COMPLETE EIGHT YEAR INITIAL TERM ENLISTMENT AS INTENDED.”

 Applicant’s Remarks: “APPLICANT REQUESTS THAT UPGRADE OF DISCHARGE CHARACTERIZATION FROM “GENERAL, UNDER HONORABLE CONDITIONS” TO “HONORABLE” BE MADE AT THE CONCLUSION OF A MINIMUM OF TWO YEARS’ ACTIVE DUTY SERVICE BY THE APPLICANT IN EITHER THE UNITED STATES NAVY RESERVE OR THE UNITED STATES ARMY RESERVE UNDER HONORABLE CONDITIONS. APPLICANT ALWAYS INTENDED TO SERVE OUT FULL INITIAL ENLISTMENT DESPITE SEVERE HARDSHIPS CREATED BY HIS STATUS AS A VICTIM OF CRIME.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Certificate of Completion For Nonresident Training Course, dtd May 24, 2005
Ltr from D_ A. S_ (Applicant), dtd July 27, 2005 (9 pages)
N62638 COMNCWRON 2 Administrative Data
Inactive Enlisted Summary Record, dtd June 26, 2004
Ltr from Faith Mission, L_ H_, Resource Specialist, dtd June 10, 2005
Article from The Enquirer , Cincinnati.Com, dtd January 12, 2005 (4 pages)
Letter from The Honorable J_ W_, United States Senate, dtd December 23, 2003
 Order, United States District Court For The Southern District of Ohio Eastern Division, dtd December 17, 2003
Ltr from U.S. Department of Justice, G_ A. L_, Director, to the Honorable J_ W_, dtd December 16, 2003
Ltr from U. S. Department of Justice, Civil Rights Division, D_ H. W_, Senior Trial Attorney, Special Litigation Section, dtd November 25, 2003 (2 pages)
Ltr from The Honorable J_ W_, United States Senate, dtd November 24, 2003
Ltr from U. S. Department of Justice, Office of Justice Programs, Office for Victims of Crime, J_ W. G_, Director, to the Honorable J_ W_, dtd November 19, 2003 (2 pages)
Ltr from U. S. Department of Justice, Civil Right Division, A_ N. M_, Section Chief, Criminal Section, dtd November 7, 2003
Ltr from U. S. Department of Justice, Office of the Inspector General, G_ L. D_, Special Agent in Charge, Special Operations, Investigations Division, dtd October 16, 2003
Ltr from U. S. Department of Justice, Office of Professional Responsibility, A_ A. W_, Program Analyst, dtd October 8, 2003
Request For Facilitation, dtd April 23, 2002
Request For Relief, dtd April 23, 2002
Applicant’s Statement, dtd May 1, 2002 (7 pages)
Request for Information, dtd April 15, 2002
Ltr from Applicant to The Honorable J_ A_, Attorney General of the United States, dtd February 20, 2002
Ltr from D_ C. R_, U. S. Department of Justice, Civil Rights Division, dtd October 23, 2001
Ltr from Applicant to The Honorable B_ S_, U.S.D.O.J., dtd September 27, 2001
Ltr from U. S. Department of Justice, Civil Rights Division J_ E_, Trial Attorney, dtd September 14, 2001
 Ltr from Applicant to The Honorable J_ A_, Attorney General of the United States, dtd August 24, 2001
Ltr from Applicant to The Honorable J_ A_, Attorney General of the United States, dtd August 24, 2001
Ltr from Applicant to The Honorable J_ A_, Attorney General of the United States, dtd August 24, 2001
Ltr from B_ S_, Senior Trial Attorney, U. S. Department of Justice, Civil Rights Division, dtd August 20, 2001
Ltr from R_ O_, Prosecuting Attorney, dtd April 6, 2001
Merit Brief of Applicant in the Court Of Appeals, Tenth Appellate District, Franklin County, Ohio (3 pages)
 Judge Dismisses Police Misconduct Case , The Columbus Dispatch, dtd May 25, 2000 (2 pages)
Ltr from U.S. Department of Justice, R_ W. R_, Chief, Criminal Section, Civil Rights Division, dtd July 1, 1998
Ltr from Applicant to B_ L_ B_, dtd May 20, 1998
Ltr from Applicant to BCNR, dtd October 1, 2005
Discharge authority, dtd January 13, 2005
Ltr from Applicant to CAPT R_ T_, USNR, Commanding Officer, Naval and Marine Corps Center, Norfolk, dtd October 29, 2005
Title 10 U.S. Code, Chapter 53, Miscellaneous Rights and Benefits
Request Pertaining to Military Records Form, dtd October 13, 2005

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: 030611*                       Date of Discharge: 20050113

 Length of Service (years, months, days):

         Active: NA**
         Inactive: NA**

 Time Lost During This Period (days):
         Unauthorized absence:    NA**
         Confinement:                       NA**

 Age at Entry: 37*

 Years Contracted: 8*

 Education Level: 17*                                AFQT: NA**

 Highest Rate: ETSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NA**                 Behavior: NA**            OTA: NA**

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): NA**
*Extracted from Applicant’s supporting documentation
** Not Available


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 :

041008:  Applicant notified of intended recommendation for discharge 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).
041101:  Applicant advised of rights and having consulted with counsel, elected to waive all rights except the right to submit a written statement for consideration by separation authority.
050113:  Commanding Officer, Naval and Marine Corps Reserve Center, Norfolk, recommended to Commander, Naval Personnel Command (PERS-913) that the Applicant be discharged with a general (under honorable conditions) by reason of unsatisfactory participation in the Ready Reserve.

050113:  Applicant discharged this date with a General (Under Honorable Conditions) discharge by reason of unsatisfactory participation in the Ready Reserve.

Service Record was missing elements of the Summary of Service.
Service Record contains a partial Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20050113 by reason of unsatisfactory participation in the Ready Reserve (A) with a service characterization of general (under honorable conditions). After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C). The Board presumed regularity in the conduct of governmental affairs (D).

 The Applicant contends his missed drills were the result of numerous financial difficulties and personal tragedies. The NDRB recognizes that serving in the U.S. Navy is challenging. Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country. It must be noted that many members of the Navy endure hardships similar to those of the Applicant. It must further be noted that the vast majority of those members do not commit misconduct as a result of their problems. Despite their hardships, these sailors are still able to serve honorably and therefore earn their honorable discharges. In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. The NDRB found that the Applicant's service was equitably characterized. Relief denied.

The Applicant contends that his discharge should be upgraded because his post-traumatic stress disorder impaired his ability to attend drills. A mental condition will not automatically excuse a servicemember from legal liability for his misconduct. The Applicant’s record contain no medical evidence that he was suffering from post-traumatic stress disorder at any time before, during, or since his naval service. The Applicant bears the burden of establishing his issues through the presentation of substantial and credible evidence. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was suffering from post-traumatic stress disorder or that any mental conditions impaired his ability to serve. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. Based upon a lack of evidence, the Board concluded that the Applicant’s mental condition was not of such a nature to relieve him from responsibility for his misconduct. As such, the Board found the discharge proper and equitable as issued. 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. Reenlistment policy of the Naval service is promulgated by the Commander, Navy Recruiting Command, 5722 Integrity Drive, Bldg 784, Millington, TN 38054. Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment. A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.

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. 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 4 Aug 2005, 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 V, Para 502, Propriety .

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

 D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs .


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 20374-5023

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