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NAVY | DRB | 2010_Navy | ND1000263
Original file (ND1000263.rtf) Auto-classification: Denied

ex-SR, USN
Current Discharge and Applicant’s Request
Application Received: 20091027
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:         US N R (DEP)        20011017 - 20011030     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20011031     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20 0 11228      Highest Rank/Rate: SR
Length of Service : Y ear ( s ) M onth ( s ) 28 D a y ( s )
Education Level:        AFQT: 32
Evaluation M arks:         Performance: N/A          Behavior: N/A    OTA: N/A

Awards and Decorations ( per DD 214):      NONE

Periods of UA /C ONF :     NJP :     S CM :    SPCM:    C C :

Retention Warning Counseling :
- 20011206 :       For refusing to participate in program . Counseled by PASS facilitators returned to training. SR agrees to adhere to RTC rules and regulations .

- 20011210 :       For lack of motivation and military bearing, disrespect to Recruit Division Commanders, disobeying an order by the ship Leading Chief Petty Officer to attend ITx1, and failure to comply with the rules and regulations of Recruit Training Command. Assigned to AID.

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:           Rehabilitation/Treatment:                  Criminal Records:       
         Personal Documentation :           Community Service:                References:     
         Department of VA letter:                  Oth er Documentation:    
                  Additional Statements :
         From Applicant:            From /To Representation:            From /To Congress m ember :        

Pertinent Regulation/Law

 A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 31, effective 25 January 2001 until 21 August 2002, Article 1910-154, Separation By Reason Of Entry Level Performance And Conduct.

 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 issues: The Applicant seeks a change to his characterization of service to honorable in order to re-enlist in the Navy.

2.       Decisional issu es: The Applicant contends that he did not have the maturity at the time to take his training seriously, but has since learned to accept responsibility for his action in life and seeks an opportunity to reenlist and serve his country in the Navy.

Decision

Date: 20 1 1 0311    Location: Washington D.C .      R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall .
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 NDRB 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 provided a personal statement to the NDRB and a letter of verification of employment for the NDRB’s consideration , neither of which rebut a presumption of regularity.

The Applicant identified one decisional issue for the NDRB’s consideration. The NDRB completed a thorough review of the circumstances that led to the discharge, and the discharge process, to ensure the discharge met the pertinent standards of both propriety and equity. The Applicant was assessed into the service with a four-year contractual obligation for active duty service under the Seafarer to Seaman Apprentice Program. His record of service while on active duty included two formal retention counseling warning (NAVPERS 1070/613) and no non-judicial punishments or punitive punishment via trial by court martial.

During the separation proceedings, the Applicant acknowledged his rights to be exercised or waived, and acknowledged the reason for discharge by initials and signature. The A pplicant chose to waive his right to consult with a qualified legal counsel and to submit a written statement to the Separation Authority. The Applicant’s separation did not warrant the right to elect an administrative hearing board.

The Applicant was recommended for administrative separation pursuant to Article 1910-154 of the Naval Military Personnel Manual (MILPERSMAN) - Entry Level Performance and/or Conduct. The Applicant was evaluated by his chain of command and the training staff at the Naval Recruit Training Command who determined the Applicant was not mental ly ill, was responsible for his behavior and conduct, but was not suitable for continued military service and that he was having extreme difficulty adjusting to a military environment. Following numerous counselings and being afforded multiple opportunities to correct his identified deficiencies, the Applicant’s Command recommended that he be separated from the service due to his evidenced failure to adjust to the military lifestyle and his inability to successfully complete the training required of him. The command further identified that the Applicant could not complete tasks as assigned without constant direct supervision. As such, the command recommend separation based on the Applicant being unqualified for further service by reason of entry level performance and/or conduct, as evidenced by incapability, lack of reasonable effort , and failure to adapt to the Naval service environment.

The Separation Authority reviewed the recommendation for propriety and equity and determined that separation was warranted. He directed the Applicant be separated pursuant to Article 1910-154 of the MILPERSMAN (En try Level Performance and Conduct) and that the Applicant’s characterization of service at discharge be UNCHARACTERIZED due to having served less th an 180 days of continuous active duty service and not otherwise being so meritorious as to warrant Secretary of the Navy consideration for Honorable .


: (Non-decisional issue) . The Applicant seeks a change to his characterization of service to honorable in order to re-enlist in the Navy. The NDRB has no authority to upgrade a discharge characterization of service for the sole purpose of enhancing reenlistment opportunities. Additionally, the NDRB has no jurisdiction or authority over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces and is not authorized to change a reenlistment code. Only the Board for Correction of Naval Records can make changes to reenlistment codes. The Commander, Navy Personnel Command, promulgates reenlistment policy of the United States Navy . A request for a waiver may be submitted during the processing of a formal application for reenlistment through a recruiter; neither a less than fully honorable discharge, nor an unfavorable "RE" code is, in itself, a bar to reenlistment.

In addressing re-enlistment codes, t he Applicant should petition the Board for Correction of Naval Records using DD Form149. When requesting a change, the Applicant should provide as much documentation regarding his issue as possible. The BCNR’s address is: Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100. Further information may be found online at http://www.donhq.navy.mil/bcnr/bcnr.htm .

 : (Decisional) ( ) . The Applicant contends that he did not have the maturity at the time to take his training seriously, but has since learned to accept responsibility for his action in life and seeks an opportunity to reenlist and serve his country in the Navy. Though the Applicant may feel his youth or immaturity was the underlying cause of his misconduct, he provided no documentation or explanation in support of th at claim. The NDRB recognizes that many of our service members are young at the time they enlist for service but most still manage to complete their entry-level training and serve out their enlistment honorably. While it is u nderst ood that some members may be less mature than others may , the NDRB does not view a member’s claim of immaturity to be a mitigating factor or a sufficient reason for performance and conduct failures . The NDRB determined the awarded discharge characterization was warranted , was equitable, and was consistent with that received by others in similar circumstances.

In accordance with the MILPERSMAN , separation initiated while a member is within the first 180 days of continuous active duty will be described as an entry level separation, except when the characterization of service as Under Other Than Honorable Conditions is authorized or Honorable is clearly warranted. The Applicant had no misconduct that would rate an U nder O ther T han H onorable Conditions discharge, and there w as no evidence of unusual circumstances involving personal conduct and performance that would merit an Honorable characterization requir ing approval by the Secretary of the Navy. Since the Applicant had served only 59 days of continuous active military service at the date of notification of separation, an Uncharacterized discharge is considered the most appropriate characterization of service. As such, relief is not warranted.

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 his discharge. The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews 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.

 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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