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NAVY | DRB | 2006_Navy | ND0600620
Original file (ND0600620.rtf) Auto-classification: Denied


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

ex-FN, USNR-R
Docket No. ND06-00620

Applicant ’s Request
The application for discharge review was received on 20060403 . The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions) . The Applicant requests a personal appearance hearing before the Board in the Washington, D.C. Metropolitan area. The Applicant designated a civilian attorney as the representative on the DD Form 293.
Decision

A personal appearance discharge review was conducted in Washington, D.C. Metropolitan area on 20070905 . After a thorough review of the records, documentary and other evidence presented to the NDRB by the Applicant, in conjunction with consideration of the factors listed in paragraphs 503 a of Secretary of the Navy Instruction 5420.174D ; t he Board determined that relief is warranted under equitable grounds even though the discharge was determined to have been otherwise equitable and proper at time of issuance. The Board’s vote was unanimous that the characterization of the discharge shall be upgraded to General and that t he Narrative Reason for discharge shall not change. The Applicant’s discharge is changed to : GENERAL (UNDER HONORABLE CONDITIONS)/ UNSATISFACTORY PARTICIPATION IN THE READY RESERVE, MILPERSMAN, Article 3630800 , Separation Code “ JND . ”

PART I - ISSUES AND DOCUMENTATION

Applicant’s Issues as Summarized by the Board

Equity:  1: The least favorable character of service is General under current regulation s
         2. Post – service conduct
         3 . Applicant received honorable discharges before an after the Other Than        Honorable (OTH) discharge
4.       Consideration of Applicant’s active service during the same enlistment
5.       Misunderstandings between Applicant and the Petty Officer responsible for Admin istrative matters at his former reserve unit
6.       Applicant’s non receipt of discharge documents
7.       Applicant’s career in law enforcement is in jeopardy because of his Other Than Honorable discharge characterization
Propriety :        8. Some drills later counted as unsatisfactory were excused
9 . Inconsistencies in discharge entries with regard to the character of discharge
Documentation
In addition to the service and medical record s , the following additional documentation, submitted by the Applicant , was considered:
Character Reference l ette r from LT T_ R_, University of Louisville Police Department, dated April 25, 2006
 Eight page s from Applicant ’s service record
 Applicant ’s brief in support of application for review (7 pages)
 Applicant ’s DD Form 214 (Release from active duty)
Applicant ’s personal statement (3 pages)
 Map and geographical data re Lexington-Morehead distance (3 pages)
Applicant ’s transcript showing dates of attendance at Morehead State Univ.
NGB Form 22, Report of Separation and Record of Service from Kentucky Army National Guard
 L etter from S_ D. L_, Assistant General Counsel, D Department of Criminal Justice Training, dated August 26, 2006 (2 pages)
Agreement between Applicant and Kentucky Law Enforcement Council, dated August 31, 2005 (2 pages)
Character reference letter from J_ T. and B_ A. P_, Applicant ’s parents , dated March 9, 2006 (2 pages)
Character reference letter from M_ A. P_, Applicant ’s wife, undated
Character reference letter from Officer J_ D. M_ , S er g eant ., Army National Guard , dated February 28, 2006
Character reference letter from Detective C_ W. K_ , Special Deputy , U.S. Marshal Service , dated March 13, 2006
Character reference letter fr om Corrections S er g eant D_ A. S_ , Staff S er g eant, Kentucky Air Nat ional Guard , dated March 10, 2006
 Character reference letter from B_ S_ , Senior Patrolman, University of Louisville Police Department, dated March 12, 2006
Character reference letter f rom K_ D_ , Assistant Youth Minister and Jeffersontown firefighter , undated
Character reference letter from S_ Z_, undated
Character reference letter from M_ A_ S_ , Applicant ’s mother-in-law, dated March 12, 2006
Character reference letter from C_ A. P_, Applicant ’s sister-in-law, dated March 12, 2006
Character reference letter from Dr. G_ B_, Associate Director of Bands, University of Louisville , dated January 25, 2006
E-mail from J_ R. R_, dated January 31, 2006
Memorandum from S_ B_, Warden, dated April 18, 1997
Employment reference from J_ P_, Interim Chief, Louisville Metropolitan Department of Corrections, dated December 9, 2003
Letter of recommendation from P_ W. R_, Jr., Assistant County Attorney, Division Chief-Juvenile Court, dated December 10, 2003
 Applicant ’s criminal record check, Louisville Metro Police Department, dated March 14, 2006
Applicant ’s high school diploma, dated 1986
Certificate of completion of Basic Academy, dated July 28, 1995
 Cert ificate of com p l etion of 280 hours of pre-service basic training in youth work, dated July 3, 1997
 Certificate of Achievement for completion of the course Academy #62, dated October 7, 1998
Certificate of Appreciation for support and participation in our “Coat A Kid Program, dated December 21, 1998
Certificate of Completion of the Course of Instruction, dated June 8, 2001
Certificate of completion of Police Mountain Bike Training, dated July 16-19, 2001
Instructor certification for Basic Physical Defense dated September 20, 2002
Certificate of Completion of course entitled Interviews and Interrogations, dated December 3-6, 2002
Certificate of Completion of course entitled Conducting Complete Traffic Stops, dated April 15-18, 2003
Peace Officer Professional Standards Certification, dated July 10, 2003
Letter of Commendation from University of Louisville Police, Department of Public Safety
Certificate of Participation of International Police and Fire Games, dated August 5-15, 2004
 Applicant ’s p erf ormance evaluation for January 1, 2004 to December 31, 2004 (2 pages)
Certificate of Completion of course entitled Basic Investigator School, dated July 18-25, 2005
Certificate of Completion of Criminal Street Gangs Investigations training course, dated February 16-17, 2006
 Applicant online personal credit report from Experian, dated March 6, 2006 (20 pages)
MILPERSMAN 1910-158, dated August 5, 2005 (2 pages)
Kentucky Revised Statues annotated, KRS §15.382 (2005) (2 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive:        AR NATL G UARD    20000425 - 20010425      (HON)
         Active: None

Period of Service Under Review :
Date of Enlistment: 19 870 130              Date of Discharge: 19920325

Length of Service (years, months, days):

          Active: 03 00 00
         Inactive: 02 0 1 2 6

Time Lost During This Period (days):
         Unauthorized absence: None
         Confinement:              None

Age at Entry: 18

Years Contracted: 6

Education Level: 12                                 AFQT: 49

Highest Rate: FN

Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3 . 3 7 ( 6 )              Behavior: 3 . 30 ( 6 )                 OTA: 3 . 40

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): No DD214 issued


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

UNDER OTHER THAN HONORABLE CONDITIONS /UNSATISFACTORY PARTICIPATION IN THE READY RESERVE, MILPERSMAN, Article 3630800.
Chronological Listing of Significant Service Events :

870310:  Applicant commenced active duty for thirty-six (36) months .

890406:  NJP for violation of UCMJ, Article 91: Disrespect to a superior petty officer on 890321.
         Award: Forfeiture of $150.00 per month for 2 months, extra duty for 20 days. No indication of appeal in the record.
890616:  Applicant unauthorized absence from 0700 to 0905 this date.

 900309:  Applicant released from active duty due to expiration of term of active obligated service with an Honorable discharge .

900310:  Applicant transferred to NRPC New Orleans (records only)

900329:  Applicant to NR CG 54 Antietam, NDC, Lexington, KY
900329:  Page 13/Admin Remarks. Notice of satisfactory participation requirements/record of unexcused absences.

900624:  Applicant unexcused absence from drill this date.

 900729:  Applicant unexcused absence from drill this date.

900825:  Applicant unexcused absence from drill this date.
900826:  Applicant unexcused absence from drill this date.

900916:  Applicant unexcused absence from drill this date.

 900916:  Applicant ’s notice of intent to nominate for involuntary additional annual training to maintain satisfactory participation as a member of the Selected Reserve.

901020:  Applicant unexcused absence from drill this date.

 901021:  Applicant unexcused absence from drill this date.
901108:  Commanding Officer’s request for additional active duty for training of Applicant was approved by Commander, Naval Reserve Readiness Command Region NINE.

901117:  Applicant unexcused absence from drill this date.

901118:  Applicant unexcused absence from drill this date.

901215:  Applicant unexcused absence from drill this date.
901216:  Applicant unexcused absence from drill this date.

9 1 0119:  Applicant unexcused absence from drill this date.

9 1 0120:  Applicant unexcused absence from drill this date.

9 1 021 6 :  Applicant unexcused absence from drill this date.
910217:  Applicant unexcused absence from drill this date.
910316:  Applicant unexcused absence from drill this date.

910317:  Applicant unexcused absence from drill this date.

910420:  Applicant unexcused absence from drill this date.

910421:  Applicant unexcused absence from drill this date.
910518:  Applicant unexcused absence from drill this date.
910519:  Applicant unexcused absence from drill this date.
910615:  Applicant unexcused absence from drill this date.
910616:  Applicant unexcused absence from drill this date.
910720:  Applicant unexcused absence from drill this date.
910721:  Applicant unexcused absence from drill this date.
91080X:  Applicant’s active duty training orders for 12 days.

 910921:  Applicant unexcused absence from drill this date.
910922:  Applicant unexcused absence from drill this date.

 920130:  Applicant notified, via certified mail, return receipt requested, of intended recommendation for discharge with the least favorable characterization of service as other than honorable by reason of unsatisfactory participation in the Ready Reserve as evidenced by Failure to report for 12 days of Extended Active Duty on 16 Sept 91. Applicant failed to respond to the notification. Extracted from Commanding Officer’s letter of 19920311 that the letter was sent certified mail, return receipt requested and that the Applicant failed to respond to the notice.

         [Note: Failure to acknowledge certified mail or respond within 30 days constitutes acknowledgement and waiver of rights. (MILPERSMAN 3640200 Paragraph 4a).]
920311:  Commanding Officer recommended discharge under other than honorable conditions by reason of unsatisfactory participation in the Ready Reserve as evidenced by failure to report for 12 days of special active duty for training on 910916.

 920318:  Deputy, Chief of Naval Personnel letter directed separation of Applicant with an other than honorable conditions characterization by reason of unsatisfactory participation in the Ready Reserve as evidenced by failure to report for 12 days of additional annual training on 910916.

920325 :  Commanding Officer, Naval Reserve Center, Lexington, KY, discharged the Applicant under other than honorable conditions by reason of unsatisfactory participation , authority: MILPERSMAN 3850300.2 and BUPERS l et t e r d ated 920318 .

PART III – RATIONALE FOR DECISION AND PERTINENT
REGULATION/LAW

Discussion
The Applicant was discharged on 19920325 by reason of unsatisfactory participation in the Ready Reserve (A) with a service characterization of under other than honorable conditions . After a thorough review of the records, supporting documents, and facts and ci rcumstances unique to this case; the Board determined that relief is warranted under equitable grounds even though the discharge was determined to have been otherwise equitable and proper at time of issuance (B and C). The Board presumed regularity in the conduct of governmental affairs (D).
Issues 1, 2, 3, and 4 (Equity): The Applicant completed his active commitment in 1990 and entered the reserves. After not providing his reserve unit with a current address and failing to appear for numerous drills the Applicant was processed for discharge without his knowledge . Consistent with regulations applicable at the time of his separation, the Applicant was discharged with an Under Other Than Honorable c haracterization of discharge for failing to satisfactorily complete his reserve obligation. The Applicant subsequently served Honorably for a year in the National Guard. A lso in the intervening years , the Applicant post-service conduct was exemplary – in that he has served his community as a law enforcement officer since 1994.

Current regulations governing discharge for members with the type of misconduct for which the Applicant was discharged provide that the least favorable characterization of service available is a General (Under Honorable Conditions). Under regulations regarding this boards standard of review, a discharge may be deemed in equitable if it is determined that policies and procedures under which the Applicant was discharged differ in material respects from policies and procedures currently applicable on a service-wide basis provided that the current policies and procedures represent a substantial enhancement of rights afforded to the Applicant and there is substantial doubt that the Applicant would have received the same discharge if relevant current policies and procedures had been available to the Applicant at the time of the discharge proceedings.

Applying this standard of review to the facts of the current case, t he board found there is substantial doubt that the Applicant would have received the same discharge if he were processed using current regulations. Because the change in regulation was not made expressly retroactive , the B oard ’ s determination that the change is more favorable is not dispositive of the case. The Board viewed it as a significant factor in considering whether the Applicant’s characterization of discharge is currently equitable. However, w hen combined with the Applicant’s significant post-service accomplishments, honorable discharge from active service, and subsequent honorable service from the Army National Guard, the B oard determined that an Other Than Honorable Discharge is not an equitable characterization of service although proper and equitable at the time of the Applicant’s discharge . The Board voted unanimously to upgrade the Applicant’s discharge to a General (Under Honorable Conditions) characterization.

Issue 5 (Equity): On this issue in the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. The Board presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. Although the Applicant claimed a dispute with a superior Petty Officer and implied that it resulted in his mistreatment and may have influenced his subsequent discharge, the Applicant provided no evidence to support this claim. 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. As such, this Board presumed that that there was no inequity in the decision to process the Applicant and his subsequent discharge for unsatisfactory participation.

Issue 6 (Equity): The Applicant argues that his discharge is inequitable because he did not receive many of the documents related to discharge. The Applicant was required to keep his command apprised of his address during his reserve obligation. The Applicant conceded that he did not notify the command when he moved . Paragraph 2 b (1) of MILPERSMAN 3640200 provides that a Notice of Administrative Separation Processing shall be delivered to a service member either personally or by certified mail. Paragraph 4a provides that if the member does not return the letter within 30 days that failure shall constitute a waiver of rights. The record reflects that the command notified the applicant by mail that he was being considered for discharge and that the Applicant failed to respond within 30 days. As such, this Board presumed that that there was no impropriety or inequity associated with the Applicants failure to receive documentation related to his discharge.

Issue 7 (Equity): The Applicant requests an upgrade to his characterization of discharge because his employment will be terminated if the decision is not favorable in his case. The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment opportunities. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.

Issue 8 (Propriety): On this issue in the Applicant’s case, the Board could discern no impropriety and therefore considered the Applicant’s discharge proper. The Board presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. Although the Applicant claimed a dispute as to whether some of his drills had been excused by his Commanding Officer, the Applicant provided no evidence to support this claim. 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. As such, this Board presumed regularity and found no impropriety in the Command’s handling of the Applicant’s missed drills.

Issue 9 (Propriety): On this issue in the Applicant’s case, the Boa rd could discern no impropriety . The Board presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. As such, this Board presumed regularity and found no impropriety in the Applicant’s discharge entries.

The following is provided for the edification of the Applicant. The Applicant has exhausted his opportunities for review by the NDRB. The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of Naval service, if he desires further review of his case .

 Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until
04 Mar 93, Article 3630800, SEPARATION OF ENLISTED PERSONNEL 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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction . You should read Enclosure (5) of the Instruction 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 Instruction 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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