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NAVY | DRB | 2010_Navy | ND1002191
Original file (ND1002191.rtf) Auto-classification: Denied

ex-FA, USN
Current Discharge and Applicant’s Request
Application Received: 20100908
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)        19960807 - 19970811     Active:  
         USNR (DEP)       19970813 - 19970824 COG
Period of Service Under Review:
Date of Current Enlistment: 19970825     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20010726      Highest Rank/Rate: FN
Length of Service : Y ear ( s ) M onth ( s ) 02 D a y ( s )
Education Level:        AFQT: 32
Evaluation M arks:         Performance: 2.8 ( 5 )      Behavior: 2.4 ( 5 )        OTA: 2.87
Awards and Decorations ( per DD 214):      NONE

Periods of C ONF :

NJP :

- 19991216 :      [Date extracted from 1070/604, Awards Page .]
                  Awarded: RIR (to E-2)

- 20000412 :      Article (Absence without leave , 20000319 )
         Awarded: Suspended:

- 20010313 :      Article (UA 20010213-20010302, 17 days)
         Article (Missing ship’s movement , 20010213 )
         Awarded: (to E-2) Suspended:

S CM :    SPCM:    C C :

Retention Warning Counseling :

- 20000204 :       On 20000204, your violations against the UCMJ were dismissed at NJP. From here forward, you will comply with the following standards or you may be subject to an administrative separation from the U.S. Navy. You will be given a reasonable period of time for rehabilitation.

- 20000413 :       For being found guilty at NJP of unauthorized absence (UA) .

- 20000 6 1 2 :       On 20000509, the Executive Officer noted a deficiency in your actions but dismissed your violations against the UCMJ.

- 20000613 :       On 20000606, the Disciplinary Review Board noted a deficiency in your actions and responsibilities.
- 20010330 :       F or absence without leave and missing ship’s movement.
Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

         “ FA ”
         “ E2 ”
         Block 12h, Effective Date of Paygrade, should read: “01 MAR 13 ”
         “ MILPERSMAN 1910-104 ”

The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate.
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. Navy Military Personnel Manual, (NAVPERS 15560C), Change 32 effective 8 May 2001 until 14 October 2001,
Article 1910-104, SEPARATION BY REASON OF EXPIRATION OF ACTIVE OBLIGATED SERVICE (EAOS).

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 seeks a discharge upgrade to obtain G.I. Bill benefits.
2.       Applicant seeks a discharge upgrade to improve employment opportunities.

Decision

Date: 20 1 2 0103             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 did not identify any decisional issues for the Board ’s consideration . However, the Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included five NAVPERS 1070/613 (Page 13) retention warnings and t hree for o f the Uniform Code of Military Justice (UCMJ): Article 86 ( Absence without leave , 2 specifications: incident #1 details NFIR; incident #2 UA , 13 Feb-2 Mar 2001, 17 days) and Article 87 ( Missing ship ’s movement, 13 Feb 2001 ) . Based on the offenses committed by the Applicant, his command could have opted to process him for administrative separation from the Navy. However, based on a significant improvement in performance, his command instead allowed him to reach his end of active obligated service (EAOS). The Applicant was discharged from the Navy on 26 Jul 2001 with a General (Under Honorable Conditions) discharge due to Completion of Required Active Service.

Issues 1-2 : (Nondecisional) The Applicant seeks a discharge upgrade to obtain G.I. Bill benefits and improve employment opportunities. The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities as r egulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

 While reviewing the Applicant’s service record, the NDRB noted that the Applicant’s EAOS was incorrectly adjusted to a date (16 Sep 2001) 23 days after his original EAOS of 24 Aug 2001 due to a 17 - day period of UA (13 Feb - 2 Mar 2001) . The record should have reflected an adjusted EAOS date of 10 Sep 2001. The Naval Military Personnel Manual ( MILPERSMAN) section 1919-104 (Separation by Reason of EAOS) limits Commanders within CONUS to separate service members no more than 30 days prior to their established EAOS. S ince it appears the Applicant’s command intended to allow him to reach EAOS, the Board determined the Applicant’s early release for EAOS discharge (approximately 45 days prior to his adjusted EAOS date) to be an inconsequential administrative error and therefore found the discharge to be proper. However, p er the MILPERSM AN, a Sailor may be awarded an Honorable discharge upon EAOS if their combined Evaluation and Counseling Report O verall Trait Average (OTA) is 2. 49 or above. Since the Applicant’s OTA was 2.87, he should have been awarded an Honorable characterization of service upon discharge . Accordingly, the Board determined that the Applicant’s discharge was proper but not equitable per the orders and directives in effect at the time of his separation. Relief granted.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries , and the EAOS d ischarge p rocess, the Board found the discharge was proper but not equitable at the time of discharge. Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain .


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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