ex-CMCR, USN

                  Current Discharge and Applicant’s Request

Application Received: 20090204
Characterization of Service Received:
Narrative  Reason  for  Discharge:  UNSATISFACTORY  PARTICIPATION  IN  READY
RESERVE
Authority for Discharge:  MILPERSMAN

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

                             Summary of Service

Prior Service:
Inactive:   USNR (DEP) 19920125 - 19920828   Active:     NONE

Period of Service Under Review:
Date of Enlistment:  19920923     Age at Enlistment:
Period of Enlistment:   Years
Date of Discharge:  19960409 Highest Rank/Rate:  CMCN
Length of Service:
      Inactive:   Year(s)     Month(s)   10 Day(s)
      Active:     Year(s)     Month(s)   07 Day(s)
Education Level:       AFQT:  64
Evaluation Marks:      Performance:  3.8 (2) Behavior:  3.6 (2)     OTA:
3.60

Awards and Decorations (per DD 214):

Periods of UA/CONF:

NJP:     SCM:     SPCM:     CC:     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 Representation:
      From Congress member:

                    Other Documentation:

                          Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 7, effective
30 July 1993 until 2 October 1996, 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 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. In-service performance did not rate an Other Than Honorable discharge.
2. Discharge based only on unsatisfactory participation.

                                  Decision

Date:  20090618         Location:  Washington D.C. Representation:

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

                                 Discussion

Issue 1:  (Decisional) ()  .  The Applicant contends he is entitled to a
discharge upgrade due to his in-service performance.  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 failure to maintain a 90
percent participation level in required reserve training over a progressive
12-month period.  The record shows the Applicant missed at least 24 of 48
drill periods during the last 12 months prior to his discharge.  The
Applicant had no misconduct that resulted in non-judicial punishment (NJP)
or a court-martial, but the Board noted the Applicant was separated from
the Delayed Enlistment Program for “moral disqualification” (for smoking
marijuana) and was granted a subsequent enlistment waiver for this
enlistment.  Based on the Applicant’s “pattern of unsatisfactory
participation,” “inability to honor his legal and moral obligations,” and
“having no further potential for governmental or naval service,” the
Commanding Officer administratively separated the Applicant from the naval
service by reason of unsatisfactory participation in the Ready Reserve.

The Applicant states his overall trait point average (OTA) was 3.80 out of
4.00.  The Board reviewed the Applicant’s service record and determined his
final OTA was 3.60 vice 3.80.  Normally a 3.60 OTA would not warrant an
Under Other Than Honorable Conditions discharge if it was the only criteria
used to determine his characterization.  For the edification of the
Applicant, characterization of service based on the Enlisted Performance
Evaluation System (EPES) is used for members separating at the expiration
of their active obligated service (OBLISERV); the Applicant was separated
prior to his OBLISERV date and not eligible to receive a characterization
based on his overall enlisted evaluations.  If the EPES is not used as the
basis for separation, characterization of service will generally be based
on the member’s total performance of duty and conduct during the current
enlistment.  The Board determined the Applicant’s issue is without merit.

Issue 2: (Decisional) ()  .  The Applicant contends the only reason for his
discharge was his unsatisfactory participation.  He cites the distance to
the reserve center and transportation problems as factors in his drill
absence.  As noted in Issue 1 above, the Applicant was separated from the
naval service because he did not meet the minimum level of participation
required for reserve training and his commanding officer felt the Applicant
had no “further potential for governmental or naval service.”  The Board
determined the Applicant’s commanding officer had proper justification and
documentation to separate the Applicant by reason of unsatisfactory
participation, and there was no evidence in the record or submitted by the
Applicant to indicate he was authorized to miss his drill periods,
attempted to make up any missed drill periods, or experienced
transportation problems.  At the time the Applicant was discharged, his
commanding officer had the option to separate him for unsatisfactory
participation in the Ready Reserve by either the notification or
administrative board procedures.  The commanding officer chose the
administrative board procedure in which the least favorable
characterization possible is Under Other Than Honorable Conditions.
Current guidance requires using the notification procedure when separating
an individual for unsatisfactory participation in the Ready Reserve in
which the least favorable characterization possible is General (Under
Honorable Conditions).  However, there is no law or regulation, which
provides an unfavorable discharge may be upgraded based solely on updates
to new policies or regulations subsequent to leaving the service.  The
Board is authorized to consider the equity of the discharge if it is
determined the policies and procedures under which the applicant was
discharged differ in material respects from policies and procedures
currently applicable on a service-wide basis to discharges of the type
under consideration.

Besides the Applicant’s statement on the DD Form 293, he failed to provide
any evidence to support his contentions.  The Board determined the
Applicant’s unsatisfactory drill performance with no documented excused
drill periods or attempts to make up missed drills demonstrates “an
inherent inability to honor his legal and moral obligations” and is
considered to be a significant negative aspect of the Applicant’s conduct.
Relief denied.

Summary:  After a thorough review of the available evidence, to include the
Applicant’s summary of service, service record entries, and discharge
process, the Board found   Therefore, the awarded characterization of
service shall remain Under Other Than Honorable Conditions and the
narrative reason for separation shall remain Unsatisfactory Participation
in Ready Reserve.

The Applicant remains eligible for a personal appearance hearing for a
period of fifteen years from the date of his discharge.  The Applicant is
directed to the Addendum, specifically the paragraphs titled Additional
Reviews, Automatic Upgrades, and Post-Service Conduct.


                  ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe 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:  After a document review has been conducted, former
members are eligible for a personal appearance hearing, provided 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.  There are veteran's organizations, such as the American
Legion and the Association of Service Disable Veterans, willing to provide
guidance to former service members in their efforts to obtain a discharge
upgrade.  If a former member has been discharged for more than 15 years,
has already been granted 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 U.S Department of Veterans Affairs (VA) 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.

Employment/Educational Opportunities:  The NDRB has no authority to upgrade
a discharge for the sole purpose of enhancing employment or educational
opportunities.  Regulations limit the NDRB’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 NDRB 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.

Post-Service Conduct:  The NDRB is authorized to consider post-service
factors in the recharacterization of a discharge.  Outstanding post-service
conduct, 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, is considered during Board reviews.  Documentation
to support a post-service conduct upgrade includes, but is not limited to:
a verifiable continuous employment record; marriage and children’s birth
certificate (if applicable); character witness statements; documentation of
community or church service; certification of non-involvement with civil
authorities; evidence of financial stability or letters of good standing
from banks, credit card companies, or other financial institutions;
attendance or completion of higher education (official transcripts); and
documentation of a drug-free lifestyle.   The Applicant is advised that
completion of these items alone does not guarantee the upgrade of an
unfavorable discharge, as each discharge is reviewed by the Board on a case-
by-case basis to determine if post-service accomplishments help demonstrate
previous in-service misconduct was an aberration and not indicative of the
member’s overall character.

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 NDRB 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