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NAVY | DRB | 2009_Navy | ND0901286
Original file (ND0901286.rtf) Auto-classification: Denied

ex-MM3, USN
Current Discharge and Applicant’s Request
Application Received: 20090409
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN UNSATISFACTORY PERFORMANCE

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

Summary of Service

 Prior Service:
 Inactive:         US N R (DEP)        20050226 - 20051003     Active:  

Period of Service Under Review:
 Date of Enlistment: 20051004     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20081107      Highest Rank/Rate: MM3
Length of Service : Y ear ( s ) M onth ( s ) 04 D a y ( s )
Education Level:        AFQT: 67
Evaluation M arks:         Performance: 3.0 ( 7 )      Behavior: 2.9 ( 7 )        OTA: 2.83

Awards and Decorations ( per DD 214):      Rifle Pistol (2) (2) EM(2) (3)

Periods of UA /C ONF :

NJP :

S CM :

SPCM:

C C :

Retention Warning Counseling:

- 20081029 :      For an adverse evaluation with one or more 1.0 performance marks which makes you ineligible for reenlistment.

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), Change 12, effective 23 September 2005 until Present, Article 1910-156, SEPARATION BY REASON OF UNSATISFACTORY PERFORMANCE.
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. Nondecisional Issue . The Applicant w ants his RE code changed.
2. Decisional Issue . The Applicant c laim s his record of service does not warrant General discharge.

Decision

Date: 20 0 9 1210         Location: Washington D.C .        R epresentation :

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

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 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 reflects one NAVPERS 1070/613 (Page 13) counseling , no non-judicial p unishment s (NJPs) and no court s -martial . Based on the Applicant’s substandard performance of duties, his command administratively processed him for separation. When notified for a dministrative se paration p rocessing, the Applicant waived his right to consult with qualified counsel, submit a written statement, and request an a dministrative b oard.

Issue 1: Nondecisional. The Applicant would like his reenlistment (RE) code changed. 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. The Applicant is strongly encouraged to contact the BCNR and request a review of his RE code.

Issue 1: Decisional ( ) . The Applicant claims his record of service was such that he rates an Honorable characterization of service . Based on the MILPERSMANUAL, a member is normally eligible for an Honorable characterization of service if his average performance, behavior and OTA marks are 2.5 or higher. Review of the Applicant’s record shows seven performance evaluations from four different supervisors. The Applicant’s average performance, behavior and OTA marks for these evaluations were 3.0, 2.9 and 2.83 respectively. The NDRB noted that the Applicant received only one adverse report in his three years of service —all others were laudatory . The Board also noted that the Applicant received this adverse report in September 20 0 8 , 7 months after the reporting period ended. The Applicant was first formally counseled on this adverse performance only 8 days before he was discharged ; a s such, h e was not granted sufficient time to improve performance before he was discharge d . This is inequitable . Before receiving his one adverse performance evaluation, t he Applicant was deemed not physically qualified for submarine service and was prescribed psychotropic medication . Based on his overall record of service, the NDRB determined that a discharge for physical condition not a disability vice unsatisfactory performance was more appropriate. Although found not qualified for submarine duty, t he Applicant’s conduct, which forms the primary basis for determining the character of service, met the standards appropriate for an Honorabl e characterization of service. Additionally, the Board feels his service record supports a change of his narrative reason for separation from Unsatisfactory P erformance to Secretarial Authority . Relief is granted.


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 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. 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 NDRB 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 NDRB B oard 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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