ex-AT3, USN

Current Discharge and Applicant’s Request

Application Received: 20110713
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:        USNR (DEP)       19940823 - 19950109     Active:  19950110 - 19991009 HON
                  USNR 19991010 - 20020822 HON
                  USNR 20020823 - 20041129 HON

Period of Service Under Review:
Date of Current Enlistment: 20041130                      Age at Enlistment:
Period of Enlistment: Years Extension
Length of Service: Years Months 15 Days
Education Level:                                            AFQT: 41
Evaluation Marks:        Performance: NFIR        Behavior: NFIR  OTA: NFIR

Awards and Decorations:  NDSM GCM AFEM SSDR MUC (2)

Periods of UA/CONF:

NJP: NONE SCM: NONE SPCM: NONE CC: 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:                  Other Documentation:    
                  Additional Statements:
         From Applicant:                    From/To Representation:           From/To Congress member:        

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. The Applicant contends that she was unable to fulfill her commitment due to lack of private and public transportation.
2. The Applicant contends her prior honorable service outweighs her missed drill periods.

Decision

Date: 20120904            Location: Washington D.C.        Representation:

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 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. 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 did not contain any negative NAVPERS 1070/613 (Page 13) retention counseling warnings, commanding officers’ nonjudicial punishments, or trial by courts-martial. However, the Applicant’s record indicates she was unable to maintain satisfactory drill attendance by acquiring at least nine unexcused absences from scheduled training in a 12-month period. The record indicates the Applicant missed 18 out of 18 scheduled drill periods between 2 April 2005 and 12 June 2005. Based on the Applicant’s pattern of unsatisfactory participation, the commanding officer administratively separated the Applicant by reason of unsatisfactory participation in the Ready Reserve. When notified of administrative separation processing using the procedure, the Applicant did not sign and return her Notification Procedures of Administrative Separation, dated 5 July 2005.

: (Decisional) () . The Applicant contends that she was unable to fulfill her commitment due to lack of private and public transportation. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support her issue. There is no evidence in the record, nor has the Applicant produced any evidence, to suggest she informed her unit of her transportation problems and that she made an effort to make it to her required drills. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. There is credible evidence in the record to suggest the Applicant failed to maintain satisfactory drill requirements, missing 18 out of 18 scheduled drill periods between 2 April 2005 and 12 June 2005 in the Ready Reserve. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects her willful failure to meet the requirements of her contract with the U.S. Navy. Such conduct falls short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of her characterization of service. Relief denied.

: (Decisional) () . The Applicant contends her prior honorable service outweighs her missed drill periods. The Applicant was administratively separated and not separated upon expiration of enlistment or fulfillment of service obligation. Each period of enlistment is an independent obligation and characterization is determined for that specific period of time. The characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation. Other considerations shall be given to the member’s length of service, grade, aptitude, and physical and mental condition. The Applicant, having served honorably for over nine years, was well aware of her obligations to the Navy Reserve. An Honorable discharge is warranted when the quality of a member’s service has met the standards of accepted conduct and performance of duty for military personnel. A General (Under Honorable Conditions) discharge is appropriate if the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance outweighs positive aspects of the member’s military record. Based on the Applicant’s record of service, the NDRB determined the Applicant’s service was honest and faithful but significant negative aspects of her conduct or performance of duty outweighed the positive aspects of her service record, and the awarded characterization of service was warranted. Relief denied.


Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, 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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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