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NAVY | DRB | 2011_Navy | ND1101119
Original file (ND1101119.rtf) Auto-classification: Denied

ex-MN2, USN
Current Discharge and Applicant’s Request
Application Received: 20110325
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

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

Summary of Service
Prior Service:
Inactive:         US N R (DEP)        19981125 - 19981214     Active:            19981215 - 20030614 HON
         USNR (IRR)       20030615 - 20060122 HON            R         20060123 - 20061027 HON (RELAD)
         USNR (IRR)       20061028 - 20061121 HON
Period of Service Under Review:
Date of Current Enlistment: 20061122     Age at Enlistment: 25
Period of E nlistment : Years 34 MONTHS Extension
Date of Discharge: 20080315      Highest Rank/Rate: MN2
Length of Service:
         Inactive:        Y ear M onth s 2 D a ys
         Active   Y ear s M onth s 0 0 D a ys

Education Level:        AFQT: 90

Evaluation M arks:         Performance: 4.0 ( 2 )      Behavior: 4.0 ( 2 )        OTA: 3.57

Awards and Decorations ( per DD 214):      Rifle EX Pistol EX AFRM w/ “M” device NDSM ACM NMCAM OSR GCM NA VY”E” SSDR GWOTSM GWOTEM ICM

Periods of UA /C ONF :

NJP : NONE S CM : NONE SPCM: NONE C C : NONE Retention Warning Counseling : NONE

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 12, effective 5 August 2005 until 2 April 2009, 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.       Applicant contends his discharge was improper , because the administrative separation process was initiated before he had accrued nine unexcused drill periods. Additionally, he contends that he was only required to drill one weekend in January 2008, not two , and so should not have received Unexcused Absences for 26-27 January 2008.
2.       Applicant contends he had completed his military service obligation and should have been considered non-obligor and transferred to the In dividual Ready Reserve (IRR) .
3.       Applicant contends he requested a n administrative board, but the request was ignored by his command.

Decision

Date: 20 1 2 06 07             Location: Washington D.C .        R epresentation : NONE

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 identified three decisional issues for the Board’s consideration. The Applicant’s record of service did not include any NAVPERS 1070/613 (Page 13) retention warnings , commanding officer nonjudicial punishment , or trial by court s -martial. The records indicate the Applicant reenlisted in the U.S. Navy Reserve on 21 November 2006 on a 6- year enlistment (48 month s obligated service), which he subsequently extended to 8 years plus 36 months (with an obligated service expiration date of 14 December 2010). Due to multiple unexcused absences, his command processed him for administrative separation due to Unsatisfactory P articipation in the Ready Reserve . The records indicate the Applicant was notified of pending administrative separation processing on 15 February 2008 (date of receipt, USPS certified mail). On 18 March 2008, the Applicant’s c ommanding o fficer sent a memorandum to the Commander, Navy Personnel Command stating the Applicant did not return his administrative separation acknowledgment of rights form within 30 days and was separated on 15 March 2008 with a General (Under Honorable Conditions) discharge.

Issues 1-2 : (Decisional) ( ) . The Applicant contends his discharge was improper , because the administrative separation process was initiated before he had accrued nine unexcused drill periods . Additionally, he contends that he was only required to drill one weekend in January 2008, not two, and so should not have received Unexcused Absences for 26-27 January 2008. The Applicant participated in his first drill weekend at Navy Operational Support Center Tampa , FL on 16-17 December 2006 , which included command indoctrination regarding unit member participation requirements . The record indicate s he received Authorized Absences for 24 February 2007 (2 drill periods). The record then reflects periods of additional A uthorized Absences from July-October 2007 (14 drill periods: 28 July, 25-26 August, 22-23 September, and 27-28 October 2007). The Applicant’s U nexcused A bsences occurred in December 2007 and January 2008, totaling 12 unexcused drill periods (8-9 December 2007, 12-13 January 2008 , and 26-27 January 2008). Due to the Applicant amassing nine or more unexcused drill periods within a 12 - month period , his command processed him for administrative separation due to Unsatisfactory P articipation in the Ready Reserve. When notified of administrative processing for separation on 15 February 2008 (USPS certified mail date of receipt), the Applicant had amassed 12 unexcused drill periods within the previous 12 month s (as evidenced by the Navy Standard Integrated Personnel System IDT Detail Review Report dated 6 February 2008). As for being marked unexcused for two weekends in one month, it is not unusual for units to drill multiple weekends in one month due to operational and training requirements. Units typically announce and distribute drilling schedules in September for the following year, so it is entirely feasible that the Applicant’s unit was scheduled to drill two weekends in January 2008. The Applicant did not provide any documentation to refute this presumption. After careful analysis and consideration, the NDRB found the Applicant’s discharge was proper, equitable, and in accordance with the applicable orders and directives in effect at the time of his separation. Relief denied.



Issue 2: (Decisional) (Propriety) RELIEF NOT WARRANTED. The Applicant contends he had completed his military service obligation and should have been considered non-obligor and transferred to the IRR. The records indicate the Applicant reenlisted in the U.S. Navy Reserve in a drill pay status on 21 November 2006 on a 6- year enlistment (48 month s obligated service) . He s ubsequently extended his enlistment to 8 years plus 36 months with an obligated service expiration date of 14 December 2010. Relief denied.
: (Decisional) ( ) . The Applicant contends he requested a n administrative board, but the request was ignored by his command. The Applicant provided a photocopy of a USPS domestic return receipt (dated 12 March 2008) as evidence of his return of administrative separation acknowledgment. Although he also included a photocopy of the NAVPERS 1910/32 (Administrative Separation Processing Notification Procedure) form , the NDRB was unable to corroborate or verify that the Applicant did, in fact, return the acknowledgment of rights form within 30 days. After careful consideration, the NDRB determined that the Applicant failed to provide the proper evidence to rebut or otherwise question the presumption of regularity in this case. The record clearly indicates the Applicant had amassed 1 2 unexcused drill periods within the previous 12 months prior to being processed for administrative separation . Accordingly, and with no significant, credible evidence submitted by the Applicant to rebut the presumption of regularity in this case, the NDRB found the Applicant’s issue to be without merit and did not provide a basis for which relief could be granted. Relief denied.

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 administrative 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 for additional information.


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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