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NAVY | DRB | 2011_Navy | ND1102173
Original file (ND1102173.rtf) Auto-classification: Denied
ex-JO3, USN
Current Discharge and Applicant’s Request
Application Received: 20110923
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)        19991110 - 19991117     Active:            19991118 - 20030311

Period of Service Under Review:
Date of Current Enlistment: 20030312     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20050701      Highest Rank/Rate: JO2
Length of Service: Y ear s M onth s 20 D a ys
Education Level:        AFQT: 76
Evaluation M arks:         Performance: 3.3 ( 3 )      Behavior: 2.0 ( 3 )        OTA: 3.57

Awards and Decorations ( per DD 214):      Rifle Pistol

Periods of C ONF :

NJP :
- 20050519 :      Article (Absence without leave, 2 specifications )
         Specification 1: 0730-0835, 20050510
         Specification 2: Fail to go to appointed place of duty, to wit: fitness center for mandatory physical readiness training
         Awarded:      Suspended:

S CM :   SPCM:    C C :

Retention Warning Counseling :
- 20030603 :       For failure to meet physical readiness test standards.
- 20050217 :       For failure to meet physical readiness test standards.

- 20050222 :       For quality of work: Required excessive supervision, product needs rework, and wasteful resources. Military bearing and character: Unsatisfactory appearance; poor self-control; unable to meet PRT standards; and failure to live up to the Navy Core Values or Honor, Courage and Commitment. Personal job accomplishments: Poor prioritization of work and avoidance o f responsibility; unreliability to meet deadlines and accomplish tasked assignments.
Administrative Corrections to the Applicant’s DD 214

The NDRB note d an administrative error on the original DD Form 214:
“CONTINUOUS HONORABLE ACTIVE SERVICE FROM 991118 UNTIL 030311”
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. 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.        The Applicant seeks an upgrade to facilitate access to Department of Veterans Affairs (VA) educational benefits.
2.       The Applicant contends he was discharged unjustly from the U.S. Navy.
3.       Post-service accomplishments.
Decision

Date: 20 1 2 0607             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 g overnment al affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant was serving on his second enlistment with the Navy, having completed honorably, one 4-year enlistment contract, which ended in March 2003. The Applicant’s record of service included three NAVPERS 1070/613 (Page 13) retention-counseling warnings and one non-judicial punishment (NJP) for violation of the Uniform Code of Military Justice (UCMJ): Article (Absence without leave, 2 specifications , Specification 1: 0730-0835, 20050510 and Specification 2: Fail to go to appointed place of duty, to wit: fitness center for mandatory physical readiness training ). The Applicant was processed administratively for separation by his command due to Unsatisfactory Performance . When notified of administrative separation processing using the procedure, the Applicant waived rights to consult with a qualified counsel or to submit a written statement . The Applicant was not entitled to an administrative board hearing .

Issue 1 : ( Nondecisional Issue ) The Applicant seeks an upgrade to facilitate eligibility for VA educational benefits. There is no requirement, or law, that grants re-characterization solely on the issue of facilitating access to VA benefits. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities or employment opportunities. Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge. As such, this issue does not serve to provide a foundation upon which the NDRB can grant relief. The Applicant is directed to the Addendum , specifically, the paragraph regarding the VA , who determines eligibility for post-service benefits, not the NDRB. The VA conducts its own determination of eligibility based on service records and input from an applicant, upon their request. The Applicant should refer to the Veterans Administration website ( http://www.vba.va.gov/VBA/ ) for additional assistance.

: (Decisional) ( ) . The Applicant contends he was discharged unjustly from the U.S. Navy. The Applicant was separted by reason of Unsatisfactory Performance of duties in accordance with Article 1 9 10-156 of the Naval Military Personnel Manual, (MILPERSMAN - NAVPERS 15560C) ( re-issued October 2002 - effective 22 August 2002 until 22 September 2005 ). In accordance with Article 1910-156, members may be separated when they are unqualified for further N aval S ervice as demonstrated by: (a) one or more enlisted performance evaluations with 1.0 marks for any performance trait, and (2) violating a NAVPERS 1070/613, Administrative Remarks , counseling/warning that specifically addresses these deficiencies. The service record documents that the Applicant received a mark of 1.0 in Military Bearing and Personal Job Accomplishment/Initiative and that he had received a P a g e 13 retention - counseling warning on three occasions. As such, the reason for discharge was proper at the time it was issued. However, the evidence of record documents that prior to this evaluation period, the Applicant was commended for excellent performance of duties and was awarded advanced schooling and reenlistment with recommendations for officer programs. Subsequently, the medical record and service record documented a period of depression and anxiety related to spousal infidelity aboard the base. This depression and anxiety was well documented in the medical record and was of such severity as to garner a recommendation for separation by the treating psychiatrist. As such, the NDRB determined that the substandard performance was related directly to the diagnosed medical condition and that the equitable method for separation should have been Convenience of the Government, Condition Not a Disability , as proposed by the attending doctors - if the command believed separation vice continued treatment was necessary. The Applicant, however, was not notified of separation due to a Condition, Not a Disability. Accordingly, the NDRB determined that though proper, the narrative reason for discharge was inequitable and warranted a change; by a vote of 5-0 , the NDRB determined that the reason for separation shall change to Secretarial Authority with a corresponding SPD code of JFF and corresponding authority for discharge of MILPERSMAN Article 1910-164 .

The Applicant seeks an upgrade to an Honorable characterization of his service at discharge. An Honorable characterization of service is warranted when the quality of a member’s service meets the standard of acceptable conduct and performance for N aval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate. A General (Under Honorable Conditions) characterization of service is appropriate if the member’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of his record. The NDRB determined that the Applicant’s service was honest and faithful but that the evidence of record, including the Applicant’s nonjudicial punishment and inability to maintain N aval S ervice standards for weight and physical readiness were significant negative aspects that did outweigh the positive aspects of his record. Accordingly, the NDRB determined that the awarded characterization of the Applicant’s service at discharge was proper, was equitable, and that a change to the characterization of service at discharge is not warranted. Relief denied.

: (Decisional) ( ) . In addition to the Applicant’s personal statement, he submitted five letters of character reference from an employer, friend, brother-in-law, sister, and VA psychiatrist. The NDRB considers 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. The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum , however, completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration. To warrant an upgrade, the Applicant’s post-service efforts need to be more encompassing. T he Board determined that the documentation submitted by the Applicant does not demonstrate if in-service misconduct was an aberration. The NDRB determined the characterization of service received was appropriate. Relief denied.
S ummary: 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 NDRB found Therefore, the awarded characterization of service shall but the narrative reason for separation shall change to SECRETARIAL AUTHORITY . 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

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