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NAVY | DRB | 2013_Navy | ND1301560
Original file (ND1301560.rtf) Auto-classification: Denied

ex-SO1, USN
Current Discharge and Applicant’s Request
Application Received: 20130725
Characterization of Service Received:
Narrative Reason for Discharge: REDUCTION IN FORCE
Authority for Discharge: MILPERSMAN 1910-102 [REASON OF CHANGES IN SERVICE OBLIGATION]

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

Summary of Service

Prior Service:
 Inactive:         US N R (DEP)        20030930 - 20040404     Active:   20040405 - 20071025 HON

Period of Service Under Review:
 Date of Current Enlistment: 20071026     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20120708      Highest Rank/Rate: SO1
Length of Service: Year(s) Month(s) 13 D ay(s)
 Education Level:        AFQT: 84
Evaluation M arks:         Performance: 3.9 ( 8 )      Behavior: 3.5 ( 8 )        OTA: 3.71

Awards and Decorations ( per DD 214):      JSCM ( w/ Combat V ) (2)

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), Change 11, Article 1910-102, effective 31 May 2005, until 20 July 2012, 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 contends he was denied due process , and his characterization of service was inequitable.

Decision

Date: 20 1 4 0212             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 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 in his second enlistment included no NAVPERS 1070/613 (Page 13) warnings and no misconduct resulting in nonjudicial punishment or court-martial. The Applicant voluntarily requested to separate early from the Nav y under the Enlisted Early Transition Program, and this request was approved. While initially issued a DD Form 214 that stated an Honorable characterization of service, a DD Form 215 issued 30 days after his separation changed the characterization of service to Under Honorable Conditions (General).

Issue 1: (Decisional) (Propriety /Equity ) RELIEF WARRANTED. The Applicant contends he was denied due process , and his characterization of service was inequitable . Per the Applicant’s service record, t he Applicant requested to end his enlistment early per the Enlisted Early Transition Program, and Commander, Navy Personnel Command (COMNAVPERSCOM) approved this request on 8 June 2012. On 2 July 2012, Commanding Officer, Naval Special Warfare Advanced Training Command directed the Officer in Charge, Personnel Support Activity Detachment (PSD) , Norfolk, VA to separate the Applicant with a General characterization of service for Reduction in Force. On 8 July 2012 (his discharge date), the Applicant signed a DD Form 214 that had an Honorable characterization of service for Reduction in Force. On 10 August 2012, PSD Norfolk issued a DD Form 215 changing the characterization of service to Under Honorable Conditions (General). On 11 October 2012, Commanding Officer, Naval Special Warfare Advanced Training Command sent a report to COMNAVPERSCOM informing them that PSD Norfolk erroneously issued the Honorable DD Form 214 on 8 July 2012 and corrected this error by sending out a subsequent DD Form 215 that changed the characterization of service to Under Honorable Conditions (General).

Per Naval Military Personnel Manual (MILPERSMAN) 1910-102 , Separation by Reason of Changes in Service Obligation (Active Duty and Inactiv e Navy Reservist), which was the article under which COMNAVPERSCOM authorized the Applicant’s separation from service, characterization of separation is by “using notification procedures referenced in MILPERSMAN 1910-402, the least favorable characterization of service is General.” Per MILPERSMAN 1910-402, Notification Procedure, “NAVPERS 1910/32, Administrative Separation Processing Notification Procedure, is the only authorized form to be used for making notification. ” After a complete review of the Applicant’s service record, including the Report of Administrative Separation from the Applicant’s command to COMNAVPERSCOM, the NDRB found no NAVPERS 1910/32 or any other indication that the Applicant was ever notified that he would be receiving a General characterization of service. While the NDRB typically presumes regularity in government affairs, the Applicant’s service record was otherwise complete, including all other administrative separation processing documentation and over 8 years of evaluation reports. Therefore, the NDRB concluded that while the Applicant’s separation was properly approved, it resulted in an inequitably assigned characterization of service.
Further, t he Applicant received an Honorable characterization of service for his first enlistment from April 2004 to October 2007. Each period of enlistment is an independent obligation and characterization is determined for that specific period of time. A review of the Applicant’s record of service in his second enlistment shows an evaluation overall trait average of 3.71 over eight periods of observation, which is indicative of above-average performance and conduct, and no adjudicated misconduct. The only negative aspect of his service record appears on his discharge evaluation where he received a 1.0 mark in Block 36


(Military Bearing/Character) and a comment in Block 43 (Comments) that s tated “[Applicant’s] NEC (5326) was removed IAW COMNAVSPECWARINST 1221.1,” which is the Enlisted Special Warfare Operat or /Special Warfare Boat Operator Navy Enlisted Classification (NEC) Review Board instruction . There is also a non-recommendation for advancement or retention. A n Under Honorable Conditions (General) 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. An Honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for Naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate. After a complete review of the records, the NDRB determined that while the discharge was warranted and proper, it was not equitable and warranted an upgrade to Honorable. 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 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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