Upgrade.Vet

NAVY | DRB | 2009_Navy | ND0901675

Original file (ND0901675.rtf) Auto-classification: Denied

ex-MA2, USN

Current Discharge and Applicant’s Request

Application Received: 20090528
Characterization of Service Received:

Narrative Reason for Discharge:
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 Current Enlistment: 20040430     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20081201      Highest Rank/Rate: MA2
Length of Service:
         Inactive:        Y ear( s ) M onth( s ) 03 D a y ( s )
         Active   Y ear( s ) M onth( s ) D a y ( s )
Education Level:        AFQT: 51
Evaluation M arks:         Performance: 3.0 ( 3 )      Behavior: 2.3 ( 3 )        OTA: 2.88

Awards and Decorations ( per DD 214):      Rifle Pistol

Periods of 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 /To Representat ion :          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. Seeking reentry in the military.
2. Oversight of a six - month excused absence.
3. Given unsatisfactory performance rating based on inaccurate information.
4. Unknowingly waived rights re: administrative separation.
5. Maintained physical readiness except one failure.

Decision

Date: 20100319 Location: Washington D.C. R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall UNSATISFACTORY 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/or 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 she had 11 unexcuse d absences from 01 March 2008 through 03 August 2008. Based on the numerous missed drills by the Applicant , the command administratively processed her for discharge from the Navy Reserves. The original notice of administrative separation processing due to Unsatisfactory Participation in the Naval Reserve of 26 September 2008 was mailed to the Applicant via certified mail. The Commanding Officer’s (Navy Operational Support Center,/Chicago) letter of 07 November 2008 indicates the Applicant was separated locally by reason of unsatisfactory participation in the Ready Reserve with a characterization of service as General (Under Honorable Conditions) based on h er failure to maintain satisfactory drill participation .

: (Nondecisional) The Applicant is seeking reentry into the military. 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.

Issues 2 - 3: (Decisonal) ( ) The Applicant is seeking an upgrade to Honorable and contends she was administratively discharged due to an oversight of a “six-month excused absence transfer” that was not proper ly reflected in her record; and she was given an unsatisfactory performance rating based on inaccurate information regarding her attendance. After reviewing the record of evidence and documentation presented by the Applicant the NDRB determined there was sufficient evidence to support a basis for separation due to Unsatisfactory Participation and the Applicant’s assertions are contradicted by the evidence , which indicates she had 5 excused absences and 11 unexcused absences in a 12 month period. Additionally, there is no evidence in the record or provided by the Applicant to support her contention that her performance rating was based on inaccurate information.

Issue s 4 - 5 : (Decisional) ( ) . The Applicant contends “I was without understanding so I waived my rights ” [pertaining to administrative separation] and that she only failed one physical readiness test (PRT) . The NDRB determined an upgrade is not warranted based on the record of evidence as previously discussed , which indicates the Applicant was properly notified of administrative separation and the right to consult with counsel before electing or waiving her rights and that she voluntarily waived her right to consult with counsel and obtain a review by the g eneral c ourts- m artial convening authority. The NDRB also concluded t hat the Applicant’s lack of understanding regarding the administrative separation process most likely resulted from her failure to exercise her right to consult with counsel prior to signing the administrative separation notice and if the Applicant had elect ed the right to consult with counsel she would have been afforded an opportunity to obtain legal advice on the administrative separation process and possible consequences of an administrative separation with a General (Under Honorable Conditions ). Furthermore, the NDRB determined that the Applicant’s compliance with the PRT requirements does not justify or mitigate her failure to satisfy her reserve duty drill requirements .

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 . 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.

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.

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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NAVY | DRB | 2009_Navy | ND0901675

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