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NAVY | DRB | 2013_Navy | ND1300867
Original file (ND1300867.rtf) Auto-classification: Denied

ex-AT3, USN
Current Discharge and Applicant’s Request
Application Received: 20130311
Characterization of Service Received:
Narrative Reason for Discharge: NON-RETENTION ON ACTIVE DUTY
Authority for Discharge: MILPERSMAN

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

Summary of Service
Prior Service:
Inactive:         US N R (DEP)        19970430 - 19970622     Active:            1997062 3 - 20011101
                                             20011102 - 20051201
                                             20051202 - 200 7 06 28
                                             20070629 - 20090614

Period of Service Under Review:
Date of Current Enlistment: 20090615     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20100809     Highest Rank/Rate: AT1
Length of Service: Y ear( s ) M onth( s ) 25 D a y ( s )
 Education Level:        AFQT: 70
Evaluation M arks:         Performance: 3.0 ( 2 )      Behavior: 2.5 ( 2 )        OTA: 2.57

Awards and Decorations ( per DD 214):      Rifle Pistol NRMSM NRSSR

Periods of UA :

NJP :     S CM :    Retention Warning Counseling :

SPCM:

- 20100601 :       Art icle (Disrespect toward superior commissioned officer)
         Art icle (Fail ure to obey order or regulation)
         Art icle (Assault , 3 specifications )
         Specification 1: Unlawfully cut another service member on or about 200906 25
         Specification 2: Assault anothe r servicemember
         Specification 3 : Commit an assault upon another servicemember with a dangerous weapon likely to produce bodily harm on or about 2009080 3
          Art icle (General A rticle - wrongfully communicate a threat to another servicemember on or about 2009080 3 )
         Sentence : 75 days (20100601 - 20100730, 59 days)

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 :        


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

 1.        The Applicant contends he was involuntarily extended on a ctive d uty past his End of Service, as a recalled reservist, for the sole purpose of an Administrative Separation , which he believes to be contrary to Naval Military Personnel Manual (MILPERSMAN) Articles 1910-208 and 1620-020 .
Decision

Date : 20 1 3 1 204             Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall NON-RETENTION ON ACTIVE DUTY .

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 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 included for of the UCMJ: Article 89 ( Disrespect toward superior commissioned officer, 1 specification ) , Article 92 ( Failure to obey order or regulation , 1 specific ation ), Article 128 ( Assault , 3 specific ations ), and Article 134 ( General A rticle, wrongfully communicated a threat , 1 specific ation ) . Based on the Applicant’s reduced rank resulting from his conviction at a Special Court-Martial, command administratively processed for separation .
: (Decisional) ( ) . The Applicant contends he was involuntarily extended on active duty past his End of Service, as a recalled reservist, for the sole purpose of an Administrative Separation, which he believes to be contrary to MILPERSMAN Articles 1910-208 (Administrative Separation Processing for Members Beyond Expiration of Active Obligated Service or Expiration of Obligated Service) and 1620-020 (Reservists Subject to the Uniform Code of Military Justice) . A review of the Applicant’s activation orders reveals that his activation period was not limited to a specific date for deactivation in that his orders explicated stated the “requirement for this event is 269 days in theater” and that he “…may be extended for a total of up to 24 months by the issuing authority . ” Further, upon the A pplicant’s misconduct, the issuing authority placed the Applicant on legal hold and modified his end of service date to 04 September 2010. The Applicant’s record of service shows he was discharged on 09 August 2010, 26 days before the Applicant’s end of active service as set by the issuing authority when placed on legal hold . At a S pecial C ourt- M artial , t he Applicant was sentenced to a reduction in rank to the grade of E-4 and 75 days confinement, of which only 59 days were served. The Applicant contends his sentence at court-martial did not include a discharge but h is command discharged him knowing that his active duty service time was set to expire . Based on the evidence of record, the Applicant’s separations processing began while he was serving his sentenced confinement. Administrative discharge processing is a separate and distinct process from punitive proceedings such as court-martial. Furthermore, administrative discharge processing is administrative in nature and not considered a form of punishment. Based on the Applicant’s DD Form 214, the Applicant was involuntarily separated for high year tenure when, as a result of grade reduction at his court-martial , he served beyond the maximum length of service for his paygrade. Characterization of service at discharge is the recognition of a service member’s performance and conduct during a period of enlistment and is not necessarily dependent upon the narrative reason for separation . Since the Applicant was administratively discharged before the end of his obligated service for high year tenure, his characterization was based on the quality of hi s total performance of duty and conduct during the current enlistment, including the reason for separation. A General (Under Honorable Conditions) discharge is warranted when the quality of 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 the member’s service record. Based upon the evidence of record, the NDRB found no improprieties or inequities in the Applicant’s discharge processing and found his discharge was not contrary to any MILPERSMAN articles . 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 rema in NON RETENTION ON ACTIVE DUTY . 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.

Pertinent Regulation/Law

 A. Navy Military Personnel Manual, (NAVPERS 15560C), Change 11, 20 June 2005 until Present, Article 1910-104, SEPARATION BY REASON OF EXPIRATION OF ACTIVE OBLIGATED SERVICE (EAOS).

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 .


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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