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NAVY | DRB | 2009_Navy | ND0901012
Original file (ND0901012.rtf) Auto-classification: Denied

ex-AN, USN-R
Current Discharge and Applicant’s Request
Application Received: 20090317
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: 19910118     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 19960425      Highest Rank/Rate: AN
Length of Service:
         Active   Y ear( s ) M onth( s ) 08 D a y ( s )
         Inactive:        Y ear( s ) M onth( s ) 00 D a y ( s )
 Education Level:        AFQT: 76
Evaluation M arks:         Performance: 3.9 ( 4 )      Behavior: 4.0 ( 4 )        OTA: 3.90

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 :

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.       Seeking health care benefits.
2.       Injured in the line of duty.
3.       Never issued a DD214.
Decision

Date: 20090903            Location: Washington D.C.        R epresentation :

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

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s record of service indicates on 15 August 1992 he was seen by a medical provided at Naval Air Station South Weymouth, M A who noted the following: 1) he fell down while running after a ball and sustain ed extensive injuries (ligament tears) and fracture d his upper right forearm ; 2) he was found not physically qualified (NPQ) for drills; 3) he missed his previous drill (date not specified) due to having chicken pox. On 29 March 1993 the Applicant was seen by a medical provider onboard the USS JOHN F. KENNEDY (CV-67) for follow-up of a Grade I left ankle sprain; it was noted that the condition was resolving and the Applicant indicated that it was feeling much better. However, per the medical record entry from 19 June 1993, the Applicant was seen by a medical provider at Naval Air Station South Weymouth, M A and placed in a temporary NPQ status based on left ankle strain as noted March 1993.

Per the Commanding Officer’s (Naval Air Station, South Weymouth Bureau of Naval Personnel) letter of 24 January 1996, the Applicant was notified of his responsibility to notify the medical department of the status of his medical condition every thirty days . O n 21 September 1992 he was mailed a n otice of n oncompliance due to his failure to notify the medical department of his physical condition every 30 days and that failure to comply would result in his case being forwarded for administrative action ; the notice was returned without delivery by the post office indicating that the recall address was invalid . T he Applicant was placed i n a NPQ status again on 27 January 1994 and advised of the notification requirement, and he failed to respond. Additional correspondence was mailed to the Applicant and returned without delivery indicating he no longer resided at the recall address that he provided. An extensive search was made in an effort to locate the Applicant and upon discovery of his current address, the notice of proposed administrative separation and statement of awareness was forwarded to him via certified mail and the certified receipt was returned indicating that he had received the notice. The Applicant contacted the legal office and was provided the names and points of contacts for the medical department and he was encouraged to sign the notification paperwork within 30 days in the event he did not want to regain his drill status. Upon expiration of the 30 - day response period, the Applicant was notified of his failure to sign the notification paperwork and his failure to contact the medical department every 30 days to update them on his physical condition . He indicated that he had not yet mailed his response to the notice of proposed administrative separation and was informed by the legal department that he would be administrative processed for discharge. The Applicant was subsequently discharge due unsatisfactory participation in the ready reserve due to his failure to report for physical examinations and failure to respond to official correspondence.

 : (Nondecisional ) The Applicant is seeking an upgrade in order to obtain health benefits. The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. 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.
: (Decisional) ( ) . In seeking an upgrade to Honorable the Applicant contends he was injured in the line of duty was told that he needed to “sign off since I was okay and able to go back to work. ”

The evidence of record as previously discussed indicates that the Applicant sustained certain injuries while attached to a ship and was placed in a NPQ status. However, the fact that one has been determined to be NPQ does not relieve that service member of his obligation to keep the medical department apprised of his physical status and his recall address. The Board determined that there was sufficient evidence to support a basis for separation of the Applicant based on unsatisfactory participation in the ready reserve due to his failure to report for physical examinations and failure to respond to official correspondence. Additionally, the Board determined that based on a review of the record, statement and evidence of the Applicant an upgrade in the characterization of service is not warranted.

: (Decisional) ( ) . The Applicant also contends he was never issued a copy of his DD Form 214 and has requested that this board provide him a copy. The Applicant’s official record contains a copy of his NAVPERS 1070/615, Record of Discharge from the U.S. Naval Reserve (Inactive). However, pursuant to Navy regulation, this Board is not authorized to provide copies of documents that are under the cognizance of another government department, office or activity . Please refer to http://www.archives.gov/ and find Military Service Records under the Most Requested Section of the website.
Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries, and d ischarge p rocess, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain UNSAT PARTICIPATION IN READY RESERVE . The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of 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 of the Applicant’s 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 veterans organizations such as the American Legion and the Disabled American Veterans that are 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 their 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.

 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 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended 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 BCNR can grant this type of narrative reason change.

 Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct 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 certificates (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 at 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 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

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