Upgrade.Vet

NAVY | DRB | 2010_Navy | ND1001054

Original file (ND1001054.rtf) Auto-classification: Denied

ex-IS2, USN

Current Discharge and Applicant’s Request

Application Received: 20100318

Characterization of Service Received: (per NAVPERS 1070/613)

Narrative Reason for Discharge: (per NAVPERS 1070/613)
Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        NONE      Active:

Period of Service Under Review:
Date of Current Enlistment: 19991020     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20040929      Highest Rank/Rate: IS2
Length of Service : Y ear ( s ) M onth ( s ) 10 D a y ( s )
Education Level:        AFQT: 94
Evaluation M arks:         Performance: NFIR         Behavior: NFIR OTA: NFIR

Awards and Decorations ( per DD 214):      N FIR

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:          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), re-issued October 2002, effective 22 August 2002 until 22 September 2005, 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. Applicant contends his discharge from the U.S. Nav y Reserve was improper/inequitable.

Decision

Date : 20 1 1 04 28 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 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 identif ied one decisional issue for the Board ’s consideration . The Board complete d a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and proprie ty. The Applicant’s record of service did not include any NAVPERS 1070/613 (Page 13) retention w arnings, commanding officer nonjudicial punishments (NJP), or trial by courts-martial. After completion of a four - year post-secondary education and while working full - time as a police officer in Georgia , the Applicant enlisted in the U.S. Nav y Reserve (Oct 1999) in the Intelligence Specialist (IS) r ating. After completion of i ndoctrination training and basic intelligence training, the Applicant continued to serve in the drilling reserves while working as a policeman . In May 2001, he submitted an email to Navy-Marine Corps Reserve Center (NMCRC) Atlanta requesting a transfer to the Individual Ready Reserve (IRR) due to pending employment and a possible overseas posting for the U.S. Department of State. On 19 Jul 2002, he sent another email to NMCRC Atlanta asking whether to provide the reserve center a CONUS-based mail address or his overseas mail address to ensure he could be reached , which was a requirement of his reserve contract. On 22 Jul 2002, the reserve center replied that his overseas address would be sufficient. The Applicant provided the overseas address on 25 Jul 2002 stating he would be posted in Afghanistan for one year. After completing back - to - back assignments overseas (Afghanistan and Israel) and with approximately three years of service in the State Department, the Applicant requested to resign so he could settle down with his wife, start a family , and resume his former duties as a police officer in the same department he previously worked. On 30 Sep 2007, he sent an email to the NMCRC to update his mailing address on file. On 1 Oct 20 07 , he received an email in response stating “your address has been updated . ” In Jan 2010, he became aware that he had been administratively separated from the Navy Reserve on 29 Sep 2004. Since the Applicant’s service records contained no administrative separation documentation or NAVPERS 1070/613 retention warnings or counseling s , the NDRB could not determine whether any attempts were made to notify the Applicant of pending administrative separation proceedings or whether he exercised or waived rights to consult with a qualified counsel, submit a written statement , and request a General Court-Martial Convening Authority review .

: (Decisional) ( ) . The Applicant contends his discharge from the U.S. Nav y Reserve was improper/inequitable . 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. In this case, the regularity presumption was questioned due to the complete lack of records required to effect a proper administrative separation, to include documentation sub s tantiating the basis for separation (e.g. , drill muster reports or NAVPERS 1070 / 613 retention warning s ) , notification of administrative separation processing , and the Separation Authority decision regarding the Applicant’s separation. Documentation submitted by the Applicant provides evidence that he did request a transfer to the IRR in May 2001 and made continued efforts to maintain a current address on file with NMCRC Atlanta through 2007 , though his administrative separation had been effected in Sep 2004. It is evident that the Applicant should have queried NMCRC to ensure his IRR request was approved. Submitting a request and having it approved/authorized are two distinct and separate events. Nevertheless, members of the Naval Service cannot be separated from service unless specific requirements are met and procedures followed to ensure lawful compliance and all rights are afforded the service member as provided in the U.S. Navy Military Personnel Manual . T he Board determined that the Navy Reserve did not properly discharge the Applicant for unsatisfactory performance .

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries, extensive pre-service and post-service conduct , performance and achievements , and considering the lack of any substantiating documentation or evidence to support that the separation was proper, the Board determined the discharge to be improper. Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain change to .

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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NAVY | DRB | 2010_Navy | ND1001054

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