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NAVY | DRB | 2012_Navy | ND1200860

Original file (ND1200860.rtf) Auto-classification: Denied

ex-EO2, USN

Current Discharge and Applicant’s Request

Application Received: 20120229

Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request:      Characterization change to:
         Narrative Reason change to:       Request to be placed in SELRES status

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        19861103 - 1 9870802     Active:          19870803 - 19950802
                  19950803 - NFIR

Period of Service Under Review:
Date of Current Enlistment: 20060428     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20111021      Highest Rank/Rate: EO2
Length of Service:
         Inactive:        Y ear( s ) M onth( s ) 03 D a y ( s )
         Active   Y ear( s ) M onth( s ) 21 D a y ( s )
Education Level:        AFQT: 48
Evaluation M arks:         Performance: 3.8 ( 4 )      Behavior: 3.8 ( 4 )        OTA: 3.50

Awards and Decorations ( per DD 214):      Rifle , Pistol , , Naval Res MSM, AFRM (w/ M Device), (2) , , , (2) , LoA , CoA , LoC

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 :             Ltr f rom Commanding Officer , NOSC, Columbus Ohio

         From Applicant:          From /To Representation:          From /To Congress m ember :

Pertinent Regulation/Law

A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 26, effective 3 April 2009 until Present, 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

Decisional issues : The Applicant contends that his discharge action was improper; he was compliant with all Select ed Reserve requirements but was still discharged with a less than honorable ch aracterization of his service.

Decision

Date : 20 1 2 03 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 discharge if such change is warranted. In reviewing discharges, the NDRB 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 Applicant identified one decisional issue related to the propriety of the discharge action for the NDRB ’s consideration . In addition, the NDRB completed a thorough review of the circumstances that led to the Applicant’s discharge, and the discharge process, to ensure his discharge met the pertinent standards of equity and p ropriety.

The Applicant’s record of service included no retention warning counselings, no nonjudicial or judicial punishments, and no civilian convictions. The Applicant enlisted without requirement for any waivers to naval enlistment and procurement standards. Having honorably completed eight years of active duty naval service, the Applicant was denied reenlistment due to high year tenure and affiliated himself with the Selected Nav y Reserve in a drilling status. While in the Selected Reserve, the Applicant reenlisted to continue his affiliation and drilling status as a Nav y Reservist. The Applicant’s service record further documents deployment with a Naval Construction Battalion in the Al-Anbar Province of Iraq in support of Operation IRAQI FREEDOM in direct support of combat operations with Multi-National Forces - West.

T he NDRB reviewed the Applicant’s discharge package to ensure the Applicant was afforded all rights, as required by the Naval Military Personnel Manual (MILPERSMAN). The Applicant was notified - in writing - of the Command’s intent to process him for administrative separation due to Unsatisfactory Participation in the Ready Reserve ( Dental Noncompliance) in accordance with Article 1910-1 58 of the MILPERSMAN. The record reflects that the Applicant failed to respond to the written notification within 30 days, which constituted acknowledgment and waiver of rights . After review by the Staff Judge Advocate, the Separation Authority (NAVPERSCOM) determined that the evidence of record was sufficient in law and fact to support the proposed reason for discharge. As such, the Separation Authority directed the Applicant’s discharge with a General (Under Honorable Conditions) characterization of service; he further directed that the Applicant be assigned an RE-4 re-entry code (not recommended for reenlistment).

(Decisional Issue) ( ) . The Applicant contends that his discharge action was improper; he was compliant with all Select ed Reserve requirements for participation, but was still discharged with a less than honorable characterization of his service. On 12 February 2011, the Applicant was notified that he was in a Temporary Not Dentally Qualified status; he was counseled that he had 180 days to gain compliance by ensuring the proper dental corrections were taken and the proper dental documentation provided. On 26 April 2011 (73 days later) , the Applicant was notified via certified mail of a pending administrative separation; he was further notified that the command was recommending separation with a General (Under Honorable Conditions) characterization of his service due to Unsatisfactory Participation (Dental Noncompliance) in the Nav y Reserve. On 04 June 2011, the Command processed the Applicant’s discharge package to the Commander, Naval Personnel Command for discharge approval. According to the records, the Applicant was determined to be dentally compliant on 01 June 2011 (4 days prior to discharge processing and 70 days prior to his notification deadline). On 14 Oct 2011, t he Command er, Naval Personnel Command approved the Command’s action to discharge the Applicant pursuant to Article 1910- 158 of the MILPERSMAN - Unsatisfactory Participation in the Ready Reserve. The specific basis for discharge action was not being dentally qualified.

In support of the Applicant’s contention, the separating command (Navy Operational Support Center Columbus, OH) provided documentation request ing the Applicant be reinstated in the Nav y Reserve; the command documents that they erred in the discharge action , sighting administrative errors and a lack of internal communication on their part. The documents of record support the fact that the command contacted the Naval Personnel Command to correct the error, but since the Applicant had already been discharged, the matter was no longer within their authority. As such, the Command and Applicant were directed to contact the NDRB. After a thorough review of the official record, supporting documents, facts, and circumstances unique to this case, the NDRB discerned an impropriety i n the discharge action and an inequity in the characterization of the Applicant’s service. The documentation of record supports the fact that the Applicant properly corrected his status as Temporarily Not Physically Qualified due to dental standards within the prescribed timeframe. The record further documents that the Command erroneously processed the Applicant for discharge, the refore, the factual basis for the discharge action was lacking. Moreover, the Applicant ’ s service record also documents a performance evaluation overall trait average of 3.50 with no documented misconduct of record. By a unanimous vote, the NDRB determined that relief is warranted and that the discharge action was both improper and inequitable .

The Applicant did not seek a specific change to the narrative reason or the separation code on his discharge documentation; he cited only a request to be reinstated in the Nav y Reserve. Reinstatement i s beyond the scope of the NDRB’s authority. However, in conjunction with the Board’s determination of impropriety in the discharge action and an inequity regarding the Applicant’s characterization of service as General (Under Honorable Conditions ) , the NDRB determined that the Applicant’s narrative reason for separation and corresponding separation code no longer accurately reflect his discharge. In cases where no other reason for separation set forth in the MILPERSMAN is appropriate, the Secretary of the Navy has the authority to direct the separation of a member prior to the expiration of their term of service. There is no other narrative reason for separation that accurately describes the reason the Applicant was separated; therefore, the NDRB determined that the reason for the Applicant’s discharge shall change to Secretarial Authority. Additionally, the discharge characterization of service shall be upgraded to Honorable - which more accurately reflects the Applicant ’ s overall conduct and performance during his service. The NDRB, however, does not have the authority to change an RE code. Only the Board for Correction of Naval Records (BCNR) can give this relief. RELIEF WARRANTED.

With the change in narrative reason for discharge to SECRETARIAL AUTHORITY and a change in the characterization of the Applicant ’ s service at discharge to HONORABLE, the Applicant is advised to contact the nearest prior service recruiter, citing this documentation, the corrected discharge documentation, the documentation provided by NAVPERSCOM , and the Command ’s supporting documentation, requesting reenlistment in the Nav y Reserve. Additionally, the Applicant may also seek reinstatement and a correction to his RE code through the Board for Correction of Naval Records, citing the same documentation and supporting evidence. When contacting the BCNR, the Applicant must fill out a DD Form 149. The ir address is Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490. Further information is also available online at http://www.donhq.navy.mil/bcnr/bcnr.htm .

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 the discharge was improper. Therefore, the awarded characterization of service shall and the narrative reason for separation shall change to SECRETARIAL AUTHORITY .

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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NAVY | DRB | 2012_Navy | ND1200860

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