Upgrade.Vet

NAVY | DRB | 2013_Navy | ND1301889

Original file (ND1301889.rtf) Auto-classification: Denied

ex-BU3, USN

Current Discharge and Applicant’s Request

Application Received: 20130919

Characterization of Service Received: (corrected)

Narrative Reason for Discharge: IN THE READY RESERVE
Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        NONE

Period of Service Under Review:
Date of Current Enlistment: 20071213     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20120404      Highest Rank/Rate: BU3
Length of Service:
Active: Year(s) Month(s) 03 D ay(s)
Inactive: Year(s) Month(s) 21 Day(s)
Education Level:        AFQT: 82
Evaluation M arks:         Performance: 3.0 ( 1 )      Behavior: 1.0 ( 1 )        OTA: 2.67

Awards and Decorations ( per DD 214):

Periods of UA /C ONF :

NJP :     S CM :    SPCM:    C C :      Retention Warning Counseling:

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error s on the original NAVPERS 1070/615 (Record of Discharge from the U.S. Naval Reserve) :

         Part 1: The Subject line should read, “GENERAL (UNDER HONORABLE CONDITIONS) DISCHARGE FROM THE UNITED STATES NAVAL RESERVE ”
         Part 2: TYPE OF DISCHARGE AND AUTHORITY should read, “GENERAL (UNDER HONORABLE CONDITIONS) and MILPERSMAN ARTICLE 1910-158”

The NDRB will recommend to the Naval Reserve Personnel Center and NOSC Houston that the NAVPERS 1070/615 be corrected as appropriate.

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:

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

Applicant’s Issues

1.       The Applicant would like to have her reenlistment code changed from RE-4 to RE-1.
2.       The Applicant contends she was discharged inappropriately as she moved from Houston to Arizona to care for her sick grandfather and followed the appropriate channels to get Unsatisfactory drills removed from her record and transfer into the Individual Ready Reserve (IRR).

Decision

Date: 20 1 4 0501             Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall IN THE READY RESERVE .

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. T he 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 no NAVPERS 1070/613 (Page 13) warnings and no misconduct resulting in nonjudicial punishment or court-martial. However, based upon the Applicant’s inability to maintain satisfactory participation in the Ready Reserve, command administratively processed for separation. The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request a n administrative separation board or a General Court-Martial Convening Authority review .

: (Nondecisional) The Applicant would like to have her reenlistment code changed from RE-4 to RE-1. 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. From documentation submitted by the Applicant, it appears she requested a waiver for reenlistment from a recruiter in May 2012.

Issue 2: (Decisional) (Propriety/Equity) RELIEF NOT WARRANTED. The Applicant contends she was discharged inappropriately as she moved from Houston to Arizona to care for her sick grandfather and followed the appropriate channels to get Unsatisfactory drills removed from her record and transfer into the Individual Ready Reserve (IRR). A review of the Applicant’s records shows that she acquired 28 Unexcused absences from required Reserve drills from November 2010 to September 2011, thus meeting the requirement to be administratively processed for separation for Unsatisfactory Participation in the Ready Reserve due to at least 9 unexcused absences from scheduled training in a 12-month period . On 24 October 2011, Commanding Officer, NOSC Houston, sent a notification of administrative separation processing to the Applicant via certified mail to her Spring, Texas . If the Applicant had already moved to Arizona, it was her responsibility to notify the Navy Reserve of her change of address, and the NOSC sent the notification to the Applicant’s address of record. In the notification paperwork, the Applicant was afforded the rights to consult with a qualified counsel and to submit a written statement to the Separation Authority. Also in the notification is the statement that the “least favorable characterization of service possible is General (Under Honorable Conditions).” It appears the Applicant did not return the notification of separation processing paperwork, which constitutes a waiver of the rights afforded to her , though the record does show that the certified-mail package was accepted and signed for on 17 November 2011. On 5 March 2012, Commanding Officer, NOSC Houston, recommended to Commander, Navy Personnel Command (PERS 913) that the Applicant be administratively separated from the Navy Reserve for Unsatisfactory Participation. Per Naval Military Personnel Manual Article 1910-158, the Separation Authority for personnel with military service obligation remaining is Commander, Navy Personnel Command, Reserve Enlisted Status

Branch (PERS 913). The Applicant had less than 8 years of service and so had military service obligation remaining. On 28 March 2012, Commander, Navy Personnel Command (PERS 913) directed NOSC Houston to discharge the Applicant with a General (Under Honorable Conditions) characterization of service for Unsatisfactory Participation in the Ready Reserve with a Reenlistment Code of RE-4 (Not Recommended for Reenlistment) and a Separation Code of JHJ (No Board Entitlement). PERS 913 also directed NOSC Houston to prepare a NAVPERS Form 1070/615 (Record of Discharge) and a NAVPERS Form 1070/613 (Service Record Page 13) to reflect the discharge. In reviewing the documentation submitted by the Applicant, the NDRB noted that the Naval Reserve Personnel Center incorrectly listed the Applicant as receiving an Honorable discharge on a NAVPERS Form 1070/615. The NDRB will send a request to the Naval Reserve Personnel Center and NOSC Houston to update the records to reflect a General (Under Honorable Conditions) discharge characterization of service. The NDRB called PERS 913 and confirmed that their records show that the Applicant received a General (Under Honorable Conditions) discharge.

The Applicant submitted a series of e-mails between herself and NOSC Houston staff members from 12 January to 30 April 2012 where she attempted to avoid a discharge by getting Unexcused absences removed from her record and transferring to the IRR. Unfortunately for the Applicant, NOSC Houston had already determined that she was no longer fit for service and had notified her of administrative separation processing in November 2011. In January 2012, her only options were to consult with a qualified counsel and to submit a statement to the Separation Authority. In the 12 January 2012 e-mail from the Applicant to ENS B_, she acknowledges receiving a letter notifying her of the Navy’s Reserve processing for administrative separation. The Applicant’s 4 months of e-mail exchanges between ENS B_ and LCDR B_ were for naught, because the Applicant had already greatly exceeded the number of allowable unexcused absences and failed to exercise the rights afforded to her once NOSC Houston determined she was no longer fit to serve. After a thorough review of the Applicant’s service records and documentation submitted by her, the NDRB determined her General discharge was warranted, proper, and equitable. 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 IN THE READY RESERVE . 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. 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 .

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 | 2013_Navy | ND1301889

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