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NAVY | DRB | 2009_Navy | ND0900372
Original file (ND0900372.rtf) Auto-classification: Denied

ex-IT3, USN
Current Discharge and Applicant’s Request
Application Received: 20081205
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: 20050429     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20060401      Highest Rank/Rate: IT3
Length of Service :
         ACTIVE:  Y ear( s ) M onth( s ) 00 D a y ( s )
         INACTIVE:        Y ear( s ) M onth( s ) 24 D a y ( s )
Education Level: NFIR    AFQT: NFIR
Evaluation M arks:         Performance: NFIR         Behavior: NFIR   OTA: NFIR

Awards and Decorations ( per DD 214): NFIR

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 :


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

Applicant’s Issues

 1. Discharge was “ improper due to n o criminal wrongdoing .”
 2. “L ack of evidence of failure to appear for drilling periods. ”
3. Counsel not provided due to lack of eligibility.
 4. Change Narrative Reason because of “False D etainment, No Convictions. ”
5 . Misconduct d oes not warrant corporal punishment.
 6 . Change Character of Service to Uncharacterized .


Decision

Date : 20 0 9 0312             Location: Washington D.C .        R epresentation : Fleet Reserve Ass.

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall UNSAT PARTICIPATION IN READY RESERVE .
Discussion

: ( ) The Applicant contends his discharge was “improper due to no criminal wrongdoing and lack of evidence of failure to appear for drilling periods . ” I n 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 was discharged due to unsatisfactory participation in the Ready Reserve. The Inactive Duty Training (IDT) History Review of 11 February 2006 shows the Applicant only attended 8 IDT periods and missed 28 IDT periods from February 2005 to January 2006. One of the satisfactory participation requirements is the member must attend 40 of 48 scheduled drills based on a progressive 12-month period. Missing any IDT period requires members to submit a Request for Excuse of Missed Drill (NAVARES 1570/4) form prior to the end of the missed scheduled drill period. The IDT History Review does not show any excused absences and the Applicant did not provide any documentation that any of his drills were excused by his commanding officer. From the United States Marshals Service Prisoner Tracking System document of 18 September 2008, the Applicant was in custody of the United States Marshalls Service from 10 July 2005 to 25 October 2005 for fraud – false statement and theft of U.S. Government Property , but these charges were dismissed and dropped. Being incarcerated does not excuse the Applicant from obtaining prior approval from his commanding officer for any excused absences. The NDRB determined the Applicant clearly failed to meet the requirements for satisfactory participation.

Issue 3 -4 : ( ) The Applicant contends he was not provided counsel because he was ineligible and wants to c hange the Narrative Reason for Separation because of false detainment and no convictions. The Administrative Separation Processing Notification Procedure document of 11 February 2006 shows the Applicant waived his right to consult with qualified counsel and submit a written statement. If the A pplicant felt he was dis charged for the wrong reason or was not able to contact the command at the time he was incarcerated , it was his obl igation to inform his command of any unusual circumstances at the time he signed the separation notification. The NDRB rejects the Applicant’s contention.
Issue 5 : ( ) Th e Applicant contends his misconduct does not warrant “corporal punishment ” because there was no evidence of desertion or criminal wrongdoing. For the edification of the Applicant, he was administratively separated from the Naval Service and not given a punitive discharge or corporal punishment . A “General (Under Honorable Conditions)” is appropriate if the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance outweighs positive aspects of the member’s military record. The Board considers missing 28 IDT periods in one 12-month period significant negative performance. The only reference the Board could find regarding any “desertion” by the Applicant was in a copy of The Record of Military Processing – Armed Forces of the United States (DD Form 1966/2, Mar 2007) in which the Applicant marked, “YES” to question 24.c. Are you now or have you ever been a deserter from any branch of the Armed Forces of the United States? No further information could be found in the record of evidence and the Applicant failed to provide any amplifying information. Based on the Applicant’s answer to question 24.c . and his administrative separtion , the NDRB rejects the Applicant’s contention.

Issue 6 : ( ) The Applicant requested to change his Character of Service to “Uncharacterized.” Members may be separated for entry level performance and conduct when
a. in an entry level status (i.e., within first 180 days of continuous active duty on the date of notification of administrative separation processing); and

b. it is determined that members are unqualified for further Naval Service by reason of unsatisfactory performance and conduct as evidenced by incapability, lack of reasonable effort, failure to adapt to the naval environment, or minor disciplinary infractions; and
c. have violated a NAVPERS 1070/613 Rev. 10/81), Administrative Remarks, counseling/warning which specifically addresses the individual's unsatisfactory performance/ conduct (MILPERSMAN 1910-204). A member must have violated a NAVPERS 1070/613 warning prior to processing for separation under this category.

While the Applicant meets the second requirement, he does not satisfy all the requirements for an “Uncharacterized” discharge. The Board determined the awarded discharge characterization was appropriate and a change would be inappropriate.

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


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 .



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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