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NAVY | DRB | 2012_Navy | ND1201928
Original file (ND1201928.rtf) Auto-classification: Denied

ex-EM2, USN
Current Discharge and Applicant’s Request
Application Received: 20120919
Characterization of Service Received:
Narrative Reason for Discharge: REDUCTION IN FORCE
Authority for Discharge : M ILPERSMAN 1910-102 [ SELECTED CHANGES IN SERVICE OBLIGATION (ACTIVE DUTY AND INACTIVE NAVAL RESERVIST ]

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

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        20050729 - 20060530     Active:            20060531 - 20090317

Period of Service Under Review:
Date of Current Enlistment: 20090318     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20100712      Highest Rank/Rate: EM2
Length of Service: Y ear( s ) M onth( s ) 25 D a y ( s )
 Education Level:        AFQT: 93
Evaluation M arks:         Performance: 3.3 ( 3 )      Behavior: 2.3 ( 3 )        OTA: 2.99

Awards and Decorations ( per DD 214):      Pistol

Periods of UA /C ONF :

NJP :

- 20100219 :      Article (Failure to obey order or regulation - d ereliction of duty)
         Awarded: Suspended:

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

Pertinent Regulation/Law

 A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, Article 1910-102, effective 31 May 2005 until Present, SEPARATION BY REASON OF SELECTED CHANGES IN SERVICE OBLIGATION (ACTIVE DUTY AND INACTIVE NAVAL RESERVIST) .

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 a change to his RE C ode.
2.       The Applicant seeks to have his S eparation C ode and N arrative R eason for Separation changed to stop the recoupment of his Selective Reenlistment Bonus (SRB).
3.       The Applicant contends he was innocent and wrongfully discharged .
4.       The Applicant contends he did not voluntarily get out and was bullied into signing the R eduction in F orce package.
Decision

Date : 20 1 3 0314             Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall REDUCTION IN FORCE .

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’s record of service included for o f the Uniform Code of Military Justice (UCMJ): Article (Failure to obey order or regulation - dereliction of duty) . Based on the offense committed by the Applicant, command recommended removal of the Applicant’s nuclear Navy Enlisted Classification (NEC). The removal of the Applicant’s nuclear NEC le d to him submitting an Enlisted Personnel Action Request for a R eduction in F orce discharge.

: (Nondecisional) The Applicant seeks a change to his RE C ode. 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 B oard for Correction of Naval Records 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.

: (Nondecisional) The Applicant seeks to have his S eparation C ode and N arrative R eason for separation changed to stop the recoupment of his SRB. The NDRB has no authority to adjust the amount or terms of the Applicant’s monetary obligation. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge. Additionally, the NDRB has no authority to change a S eparation C ode s and a N arrative R eason for Separation for the sole purpose of preventing recoupment of monetary obligation s . The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 , using DD Form 149 for this issue . Their website is http://www.donhq.navy.mil/bcnr/bcnr.htm .

: (Decisional) ( ) . The Applicant contends he was innocent and wrongfully discharged. The Applicant further contends that he was unable to adequately defend himself at NJP , and he was refused a trial by court-martial even though the ship was in dry dock. The Applicant brought up the se contentions of being unable to adequately defend himself at NJP and sought to refuse NJP in his appeal letter to Commander, Submarine Squadron Seven , dated 24 February 2010. The record clearly shows the Applicant was attached to USS CHEYENNE and per Article 15 of the UCMJ , a member attached to or embarked in a vessel does not have the right to a trial by court-martial. The physical location of the vessel at the time of NJP is irrelevant. The Applicant was found guilty at NJP of violating UCMJ Article 92, which is considered a serious offense per Appendix 12 of the Manual for Courts-Martial and warranted separation Under Other Than Honorable Conditions or General (Under Honorable Conditions). The Applicant submitted no evidence to support his contention that he was innocent , therefore, the NDRB must rely upon the presumption of regularity in the conduct of Government affairs. Th e NDRB discerned no impropriety or inequity in the Applicant’s discharge . Relief denied.

4 : (Decisional) ( ) . The Applicant contends he did not voluntarily get out and was bullied into signing the R eduction in F orce package. The record contained no evidence of any wrongdoing by the Applicant’s command or anyone else in the discharge process. However, the record clearly shows that the Applicant signed and submitted an Enlisted Personnel Action Request for a R eduction in F orce discharge . P ursuant to Naval Military Personnel Manual A rticle 1910-102, Commander, Navy Personnel Command, may approve a voluntary separation request from a member when the member is not serving in a rating, NEC code, and occupational field or military occupational specialty. The NDRB discerned no impropriety and determined the Applicant’s discharge was proper. 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 d ischarge p rocess, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain REDUCTION IN FORCE . 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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