Upgrade.Vet

NAVY | DRB | 2008_Navy | ND0801056

Original file (ND0801056.rtf) Auto-classification: Denied

ex-AA, USN

Current Discharge and Applicant’s Request

Application Received: 20080328

Characterization of Service Received:

Narrative Reason for Discharge: UNSAT PARTICIPATION IN READY RESERVE

Authority for Discharge: MILPERSMAN

Applicant’s Request: Characterization change to:
                  Narrative Reason change to:

Summary of Service

Prior Service:
Inactive: NONE                                       Active:

Period of Service Under Review:
Date of Enlistment: 20050106     Period of E nlistment : Years Extension         Date of Discharge: 20051209
Length of Service : Y ea rs M on ths 04 D a ys        Education Level:       Age at Enlistment:      AFQT: NFIR
Highest Rank /Rate : AN    Evaluation M arks: Performance: NFIR     Behavior: NFIR OTA: NFIR
Awards and Decorations ( per DD 214): NONE

Periods of UA /C ONF :

NJPs :

S CMs :

SPCMs:

C C :

Retention Warnings: .

Types of Documents Submitted/reviewed

Related to Military Service:      DD 214:          Service and/or Medical Record:          Other Records:
Related to Post-Service Period:
         Employment:                        Finances:                          Education /Training :
         Health/Medical Records:          Substance Abuse:                           Criminal Records:
         Family/Personal Status:          Community Service:                References:
Additional Statements From Applicant:             From Representat ion :              From Member of Congress:
Other Documentation (Describe) :
-        DD Form 149

Pertinent Regulation/Law

A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 12, effective 5 August 2005 until Present, MILPERSMAN Article 1910-158, 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, Para 211, Regularity of Government Affairs , Part V, Para 502, Propriety and Para 503, Equity .

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

Applicant’s Issues

1. Applicant claims she did not drill due to hyperthyroid problem.

Decision

Date : 20 08 0904 Location: Washington D.C . R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall ( Unsatisfactory Participation in the Ready Reserve) .

Discussion

: ( Equity ) . The Applicant states she stopped active ly drilling in her reserve unit because of her hyperthyroid problem. In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. A review of the Applicant ’s records indicate d she was diagnosed with Graves’s disease in January 2005 , shortly after she joined the Naval reserves. The Board was unable to verify how often she drilled between January and July 2005. However, in July 2005 the command sent a notification to her explaining that she was being placed on the Temporar il y Not Physically Qualified (TNPQ) list , which exempted her from monthly and annual drills. She received written notification she was required to submit a monthly medical report stating her current medical condition. In September 2005, the Applicant received a final notification she had to provide written documentation updating her medical status to her command and that failure to do so would result in an administrative discharge. There was no evidence in the record showing the Applicant complied with this notification and as a result the command proceeded with steps to administratively discharge her in December 2005 for unsatisfactory participation in the Ready Reserve.

The Board did notice in the Applicant’s record where she had reported to her command she had been sexually harassed on two separate occasions by another reservist with in her command. In July 2005, she made written allegations regarding her assailant’s behavior to her command. She asked to be moved to another command as soon as she completed her “A” school training . The NDRB verified the NCIS office in Millington, TN investigated these allegations and t he content of the investigation through the NCIS office in Washington D.C. The first incident occurred in the Comma nding Officer’s office , into which the accused had locked the Applicant. The second incident occurred in the hotel where the drilling reservists stay during drill periods . The Applicant claim s the advances by the accused were not wel comed. The Applicant further claims the accuser stated he would continue to sexually harass her off-base and even follow her to her next duty station . T he Applicant claims she was frightened a nd stopped drilling to avoid him . The accused first denied touching the Applicant on her breasts, buttocks and legs on two separate occasions. However, w hen faced with taking a polygraph, the accused recanted and admitted he had sexually harassed the Applicant. The unit commander declined to prosecute the assailant and subsequently released him from active duty b ecause he had not completed the required Naval Reserve Accession Course during his first 12 months of active duty . The assailant subsequently returned home without further charges or prosecution against him from the command in regards to this incident. The Board is unaware if the Applicant reported the matter to the civili a n authorities and no further information was provided from the Applicant concerning such action.

It is understandable that the Applicant would avoid drills if she was being sexually harass ed. However, when the Applicant was placed on the T NPQ list in July 2005, she was exempt from drills and would not have had to work with or near her assailant. The NDRB regrets the command did not punitiv e ly pursue this matter and can sympathize with the Applicant under the circumstances. However, the Applicant still failed to produce the requested medical documentation as requested by her command and as a result she was justifiably discharged for unsatisfactory participation in the Ready R es erve . The medical updates were needed by the command as supporting documentation substantiating the Applicant’s medical condition and absence from drill periods. Without such documentation the command had no other recourse but to administratively discharge the Applicant. T he Board determined an upgrade would be inappropriate.

A fter a thorough review of the available evidence, to include the Applicant’s Summary of Service, Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found

ADDENDUM: Information for the Applicant

Complaint Procedures : 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 to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC 20301-4000 . 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 . ”

Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provi ded the 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 additional evidence related to this discharge. Representation at a personal appearance hearing is recommended but not required. If a former member has been discharged for more than 15 years , has already been grante d a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits: The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

Employmen t / Educational Opportunities : The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.

Reenlistment/RE-code: Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. 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.

Medical Conditions and Misconduct : DoD disability regulations do not preclude a disciplinary separation. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record. Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or other medical related reasons. Only the Board for Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - 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 may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.

Issues Concerning Bad-Conduct Discharges (BCD ) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief. With respect to a discharge adjudged by a special court-martial, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed. The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership: 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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NAVY | DRB | 2008_Navy | ND0801056

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