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NAVY | DRB | 2009_Navy | ND0900077
Original file (ND0900077.rtf) Auto-classification: Denied

ex-HM2, USN
Current Discharge and Applicant’s Request
Application Received: 20081015
Characterization of Service Received:
Narrative Reason for Discharge: UNSATISFACTORY PARTICIPATION IN THE READY RESERVE
Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
Inactive: NONE             A ctive:            19920615 - 20000225 HON
                           R         200 00322 - 20000815 HON
Period of Service Under Review:
Date of Enlistment: 20040428     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20050212      Highest Rank/Rate: HM2
Length of Service : Y ear s M onth s 15 D a ys
Education Level:        AFQT: 62
Evaluation M arks: Performance: NFIR Behavior: NFIR OTA: NFIR

Awards and Decorations ( per DD 214):     

Periods of UA /C ONF : NJP : S CM : SPCM: C C :

Retention Warning Counseling :

Types of Documents Submitted/reviewed

 Related to Military Service:     
DD 214:         Service/ 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 Congress m ember :

Oth er Documentation :

Pertinent Regulation/Law

 A. The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until
4 August 2005, 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. Reenlistment opportunity.
2. A ttemp ted to transfer to the i nactive r eserve.

Decision

Date: 20 0 9                      Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall SECRETARIAL AUTHORITY .
Discussion

 : either which the Board cannot form the basis of relief for the Applicant, or the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum , specifically the paragraph concerning , regarding this Issue.
: ( ) . The Applicant contends he is entitled to a discharge upgrade because he attempted to transfer to the inactive reserve prior to being separated. 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. The Applicant’s record of service was marred by a record of ten unexcused absences from inactive duty training periods. The Applicant does not provide any evidence to support his contention he attempted to transfer to the inactive reserve. However, t he record of evidence indicates a number of administrative errors were made by the Applicant’s command and the Personnel Support Detachment (PSD) . The pertinent events in the Applicant’s service and di scharge process are cited below:

- 28 April 2004 : Applicant enlists in the Navy Reserve for three years. Because the Applicant has completed eight
years of “Honorable” active service in the Marine Corps, the Applicant did not have a military service obligation. As
such, he is considered a “non-obligor ” for the purposes of participation in drills.

- 28 April 2004: Applicant signs NavRes Form 1570/2 , Satisfactory Participation Requirements/Record of Unexcused
Absences , as part of his enlistment process. This document explains the consequences for not maintaining satisfactory
participation in the Reserves. For non-obligors, the only actions authorized are termination from the Selected Reserve
or being placed in a probationary status. Although not explicitly stated , termination in the Selected Reserve does not
imply “Administrative Separation”, rather it implies transfer to the Inactive Reserve.
- 25 September 2004, 23 October 2004, 24 October 2004, 20 N ovember 2004, 21 November 2004, Applicant accrues     u nexcused absences from IDT . The Applicant contends these were accrued after he attempted to transfer to the
inactive reserve.

- 8 January 2005: Commanding officer signs discharge notification letter.
- 18 January 2005: Notification l etter sent to Applicant via certified mail.
- 20 January 2005: Notification l etter returned as undeliverable.
- 12 February 2005: Commanding Officer signs Administrative Remark in Applicant’s service record documenting
separation for “Unsatisfactory Participation” with a “General” characterization of service.


- 2 2 February 2005: Commanding Officer dir ects PSD to discharge Applicant for “Unsatisfactory Participation” with          a “General” characterization of service.
- 22 February 2005: PSD completes NavPers Form 1070/615 , Record of Discharge f rom the U.S. Naval Reserve , wi th
“Honorable” characterization of service . The document also shows the authority for discharge as MILPERSMAN 1910-104 (Completion of Required Active Service).

The NDRB determined the following errors were made in processing the Applicant’s case:

- The command improperly directed the Applicant be discharged from the Navy Reserve. As discussed above, the
Applicant was a non-obligor. The consequences of not satisfactorily participating should have resulted in, at worst,
transfer to the inactive reserve.

- The PSD erroneously issued a NavPers Form 1070/615 , Record of Discharge , which was not as directed by the
commanding officer.
To resolve the errors, the NDRB mad e the following determinations:

- The Applicant’s discharge will be “Honorable.”

- The narrative reason for separation will change to “Secretarial Authority. ”

- The Reentry Code shown on the Applicant’s NavPers Form 1070/615 is “Recommended for Reenlistment,” so the
Applicant should be allowed to reenlist using the current Form 1070/615 , even though it was issued in error . In the event that he is unable to reenlist, t he Applicant is advised only the Board for Correction of Naval Records (BCNR) has the authority to change this code. The NDRB strongly recommends the BCNR change the Applicant’s reentry code to “RE-1.” The Applicant is directed to the Addendum , specifically the paragraph concerning , for further information regarding .

After 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 the discharge was improper and not equitable.



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 or for any basis wherein an Other Than Honorable Discharge is authorized, 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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