Upgrade.Vet

NAVY | DRB | 2012_Navy | ND1201375

Original file (ND1201375.rtf) Auto-classification: Denied

ex-YN2, USN

Current Discharge and Applicant’s Request

Application Received: 20120607

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 19931027 - 20010921        Active:

Period of Service Under Review:
Date of Current Enlistment: 20010922     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20040724      Highest Rank/Rate: YN2
Length of Service:
         Inactive:        Year(s) Month(s) 29 D ay(s)
         Active   Year(s) Month(s) 00 D ay(s)
Education Level:        AFQT: NFIR
Evaluation M arks:         Performance: 2.3 ( 4 )      Behavior: 2.0 ( 4 )        OTA: 2.07

Awards and Decorations ( per DD 214):      NONE

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:                  Other Documentation:
                  Additional Statements:
         From Applicant:          From/To Representation:          From/To Congress member:

Pertinent Regulation/Law

A. The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 4 August 2005, 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 wants her Reentry (RE) Code changed from RE-4 to RE-2 or better .
2.       The Applicant requests permission to reenlist in the military with respect for continuing her education in the Government Contract Management Master Certification Program at Villanova University.
3 .       The Applicant contends her discharge was inequitable , because she hand-delivered a Special Request Authorizat ion, but her command lost it.
4 .       The Applicant contends her 10 years of excellent service, drill attendance, and above - average evaluations warrant consideration for upgrading her discharge.
5.       (NDRB Issue) The Applicant’s discharge was warranted but improper ly executed .

Decision

Date: 20 1 3 04 26             Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall SECRETARIAL AUTHORITY .

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 g overnment al affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s record of service did not include any NAVPERS 1070/613 (Page 13) warnings, non-judicial punishments, or trials by court-martial for violation s of the Uniform Code of Military Justice (UCMJ ). Based on the Applicant ’ s unexcused drill absences, which exceeded the maximu m allowed, her command administratively processed for separation . When notified of administrative separation processing using the procedure, the Applicant waived right to consult with a qualified counsel , but elected her rights to submit a written statement and request an administrative separation board . The Applicant was discharged locally by Naval and Marine Corps Reserve Center St. Louis on 24 July 2004.

: (Non - decisional) The Applicant wants her Reentry (RE) Code changed from RE-4 to RE-2 or better . She al so requests permission to reenlist in the military . The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. Furthermore, since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, it is not authorized to change an (RE) code. Only the Board for Correction of Naval Records can make changes to RE codes. Neither a less than fully honorable discharge nor an unfavorable RE code is, in itself, a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge.

: (Decisional) ( ) . The Applicant contends her discharge was inequitable , because she hand-delivered a Special Request Authorization, but her command lost it. 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 h er issue. The Applicant provided a copy of the special request chit she submitted asking for an authorized absence, but it has no recommendations or approval from her chain of command. Simply submitting it and assuming that it got approved is not the same as having it approved. It was the Applicant’s responsibility to follow up with her chain of command to obtain approval. She also provided a copy of a letter addressed to her command , dated 22 September 2004, after she was discharged, wherein she requested separation for a number of medical reasons , but again provide d no evidence of her command’s response. Neither the Applicant’s statement nor the documentation she submitted is sufficient to support her argument s claiming impropriety or inequity , and neither overcome s the government’s presumption of regularity in this case. Relief denied.

Issue 4 : (Decisional) ( ) . The Applicant contends her 10 years of excellent service, drill attendance, and above - average evaluations warrant consideration for upgrading her discharge. Despite the positive aspects of a service member’s record of service, certain situations warrant separation from the Navy to maintain proper order and discipline. Per Navy regulations, members may be separated from the Navy Reserve when they acquire at least nine unexcused absences from scheduled training in a 12-month period. The Applicant exceeded th is number and was properly notified of administrative separation processing. The NDRB concluded that her numerous unexcused absences were sufficient to outweigh the positive aspects of her service record and that a General (Under Honorable Conditions) discharge was warranted. Relief denied.

Issue 5: (NDRB Issue) (Decisional) (Propriety) RELIEF WARRANTED. The Applicant’s discharge was warranted but improperly executed. On 15 June 2004, Naval and Marine Corps Reserve Center St. Louis notified the Applicant of administrative separation processing for unsatisfactory participation in the Navy Reserve. On 15 July 2004, the Applicant responded that she waived her right to consult with counsel but elected her rights to submit a written statement and appear before an administrative separation board. With more than six years of total service, she warranted the right to appear before an administrative separation board. Nine days later on 24 July 2004, her reserve center discharged her for Unsatisfactory Participation with a General (Under Honorable Conditions) characterization of service. However, a Bureau of Personnel Code 913 worksheet found in the Applicant’s service record indicates an administrative separation board was never held, and her reserve center discharged her before receiving final approval from PERS 913. As a result, while the discharge was warranted for unsatisfactory participation, it was not properly executed. Therefore, the NDRB voted unanimously to upgrade the characterization of service to Honorable and change the narrative reason for separation to Secretarial Authority. 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 d ischarge p rocess, the Board found the discharge was warranted but not properly executed. Therefore, the awarded characterization of service shall and 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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NAVY | DRB | 2012_Navy | ND1201375

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