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NAVY | DRB | 2009_Navy | ND0901121
Original file (ND0901121.rtf) Auto-classification: Denied

ex-PNSN, USN
Current Discharge and Applicant’s Request
Application Received: 20090326
Characterization of Service Received: (per NAVPERS 1070/613)
Narrative Reason for Discharge: (per NAVPERS 1070/613) UNSAT PARTICIPATION IN THE READY RESERVE
Authority for Discharge: ( per NAVPERS 1070/613 ) MILPERSMAN 1910-1 58

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

Summary of Service

Prior Service:
Inactive:         NONE              Active:   20020429 – 20020529 HON

Period of Service Under Review:
Date of Current Enlistment: 20050323     Age at Enlistment:
Period of E nlistment : Years Extension
 Date of Discharge: 20051215      Highest Rank/Rate: PNSN
Length of Service:
         Inactive:        Y ear( s ) M onth( s ) 23 D a y ( s )
         Active   Y ear( s ) M onth( s ) 00 D a y ( s )
 Education Level:        AFQT: 53
Evaluation M arks:         Performance: NFIR         Behavior: NFIR   OTA: NFIR

Awards and Decorations (per DD 214):      NONE

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 /To Representation:            From /To Congress m ember :        

Oth er Documentation:   

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.        Wants to reenlist and was told he w ould be eligible for reenlistment into the Navy six months after discharge .
2.       Was told that he would be gi ven an Honorable discharge.
3. Post-service conduct warrants consideration .
Decision

Date : 20 0 9 1015             Location: Washington D.C .        R epresentation :

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

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 discharg e if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of g overnment al affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s record of service reflects no misconduct which resulted in nonjudicial punishment (NJP) or court-martial. T he Commanding Officer , Naval Reserve Center, Tampa, stated in his letter of 15 December 2005, “ PSSN Harris was sent to NRAC [Naval Reserve Accession Course] Training on 12 Sep 05 and returned from NRAC Training in RTC [Recruit Training Command] Great Lakes on 23 Sep 05 as a course failure for his inability to adapt to military life. Base d on the recommendation from the RTC Great Lakes, he is not considered to be a mobilization asset. In accordance with his mobilization assessment, he is not recommended for retention or reaffiliation to the Naval Reserve. ” Per MILPERSMAN 1910-158, a member may be separated when they fail to satisfactorily complete Basic Training Equivalency or Navy Reserve Accession Course within the required time frame. Based on the Applicant’s failure to complete NRAC, his command administratively processed him for separation. When processed for a dministrative s eparation, the Applicant waived his right to consult with a qualified counsel , but elected to submit a written statement ; he was not eligible to request an a dministrative discharge b oard.

: (Nondecisional) The Applicant is requesting an upgrade to reenlist into the Navy Reserve or Coast Guard Reserve and was told would be eligible for reenlistment into the Navy six months after discharge. 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 reentry (R E ) 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.

Issue 2 : (Decisional) ( ) . The Applicant states that he was told that he would be given an Honorable discharge . T he record of evidence shows the Commanding Officer , Naval Recruit Center, Tampa, per his letter of 15 December 2005, separated the Applicant with a General (Under Honorable Conditions) characterization , and the Applicant’s NAVPERS 1070/613 (Page 13) of 15 December 2005 was correct . The Applicant provided no documentation to refute the Commanding Officer’s decision . S tatements alone are not sufficient and without documentary evidence the Board cannot form a basis of relief. Based on the evidence of record, the NDRB determined the awarded characterization of service was warranted.

Issue 3 : (Decisional) ( ) . The Applicant contends he had b een working at a university as a Library Associate for nearly 2 ½ years . Besides the Applicant's statement on the DD Form 293, he failed to provide any additional documentation and evidence on his behalf to support a post-service conduct review. The Applicant's statements alone, without sufficient documentary evidence, are not enough to form a basis of relief. On page 4, Item 8, in the instructions for completion of DD Form 293, the Applicant is notified to submit evidence "which substantiate or relate directly to your issues in Item 6." (Issues: Why an upgrade or change is requested and justification for the request). Additionally, upon receipt of the Applicant's DD Form 293, the NDRB mails an acceptance letter that includes the Information Concerning Review Procedures, which discusses the submission of additional documents in paragraph 3, Submission of Evidence, and in the last section on page 4, Information Pertaining to a Review Based Upon Post-Service Conduct. However, even if the Applicant could have produced additional evidence to support a review based on his post-service conduct, the Applicant must have a full understanding that post-service conduct alone does not guarantee an upgrade.

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 THE 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 Association of Service Disable 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 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 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.
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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