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NAVY | DRB | 2014_Navy | ND1400235
Original file (ND1400235.rtf) Auto-classification: Denied

ex-YNC, USN
Current Discharge and Applicant’s Request
Application Received: 20131204
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request:      Characterization change to:      
         Narrative Reason change to:       COMPLETION OF REQUIRE D SERVICE

Summary of Service

Prior Service:
Inactive:         US N R      20050628 - 2007 0627 HON   Active:            19940627 - 200 5 0609
                                    USN      20071114 - 20080930 HON
                                    USN      20090619 - 20100418 HON
Period of Service Under Review:
Date of Current Enlistment: 20070817     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20110207      Highest Rank/Rate: YNC
Length of Service:
         Inactive:        Y ear( s ) M onth( s ) 24 D a y ( s )
         Active   Y ear( s ) M onth( s ) 17 D a y ( s )
 Education Level:        AFQT: 49
Fitness R eports:

Awards and Decorations :          AFRM WITH “M” DEVICE (2) (4) JSAM (2) JMUA GWOTSM ACM

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:                  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 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 .


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

Applicant’s Issues

 1.        The Applicant contends his command violated Naval Military Personnel Manual ( MILPERSMAN ) Article 1910-702 screening requirements.
2.       The Applicant contends he was not properly notified of the administrative separation process.
3.       The Applicant contends he was excused from absences that hi s command charged as unexcused.
4.       The Applicant contends he served honorably for 15 years.
Decision

Date : 20 1 4 0605             Location: Washington D.C .        R epresentation :

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

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 . 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 proprie ty. The Applicant’s record of service included a period of 12 unexcused absences from required Navy R eserve drill s between September 2010 and November 2010 . Based on the Applicant’s unsatisfactory participation in the Navy R eserve , command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant did not respond to the notification letter, which constitutes a waiver of rights to consult with a qualified counsel, submit a written statement, and request an administrative board .

: (Decisional) ( ) . The Applicant contends his command violated MILPERSMAN Article 1910-702 screening requirements. MILPERSMAN Article 1910-702 requires that service members serving in an imminent danger pay area in a two year period prior to initiation of administrative separation process ing complete all post-deployment surveys and medical evaluations and be screened by medical authorities for symptoms of P ost- T raumatic S tress D isorder (PTSD) and T raumatic B rain I njury (TBI) . I nvoluntary separations will be held in abeyance until any required evaluations and follow-on diagnos e s are complete. The evidence in the Applicant’s record shows that he did serve in an imminent danger pay area from August 2009 until March 2010 in support of Operation ENDURING FREEDOM in Afghanistan. The 27 January 2011 recommendation for administrative separation from the Commanding Officer, Navy Operational Support Center (NOSC) , Norfolk to Commander, Navy Personnel Command incorrectly listed the Applicant as not serving in an imminent danger pay in the previous two years, and so the question concerning whether the Applicant’s record had been screened for PTSD/TBI was incorrectly answered as Not Applicable. 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 his issue. Although the Applicant’s command made administrative errors on this document, the NDRB presumed the Applicant properly completed required post-deployment surveys and medical evaluations during demobilization from his service in Afghanistan and was not diagnosed with PTSD or TBI. The Applicant d id not present any evidence that he was diagnosed with PTSD or TBI and d id not contend that PTSD or TBI warrant ed consideration by the NDRB as contributing factors in his unsatisfactory participation. T he NDRB determined that although the Applicant’s command committed an administrative error in the separation process, the error did not significantly affect the outcome of the process or render the separation improper. Relief denied.







: (Decisional) ( ) . The Applicant contends h e was not properly notified of the administrative separation process. The record shows the Applicant’s command sent a certified letter of notification to the Applicant’s last known address on 30 November 2010 . The letter was received and was signed by a person at the address the Applicant had given to his command as his residence. It is the Applicant’s responsibility to keep the Navy Reserve informed of current contact information. The NDRB determined NOSC Norfolk completed the required steps to administratively separate the Applicant for unsatisfactory participation. Relief denied.

: (Decisional) ( ) . The Applicant contends he was excused from absences that his command charged as unexcused. The Applicant states he contacted his Command Master Chief in August 2010 to request he be excused from drills due to his father’s terminal illness . The Applicant states that he was told his request was approved and that he was informed his enlistment contract would expire during his absence, and he could either choose to reenlist or separate at that time. The Applicant did not provide any evidence to support his statements or rebut the Applicant’s service record of 12 unexcused absences from September 2010 to November 2010. Furthermore, the Applicant’s service contract for this period did not expire until August 2011, meaning he was supposedly approved by his Command Master Chief for excused absences for a full year until the end of his contract. 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 his issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was approved to be absent from his reserve drills. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. Relief denied.

Issue 4: (Decisional) (Propriety/Equity) RELIEF NOT WARRANTED. The Applicant contends he served honorably for 15 years. The Applicant received Honorable discharges for his previous enlistments and periods of active duty. Each period of enlistment is an independent obligation and characterization is determined for that specific period of time. During his current enlistment, he acquired 12 unexcused absences in a 12-month period and met the requirements to be administratively separated. Since t he Applicant was administratively separated and not separated upon expiration of enlistment or fulfillment of service obligation, the characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation. Other considerations shall be given to the member’s length of service, grade, aptitude, and physical and mental condition. Based on the Applicant’s record of service, the NDRB determined the Applicant’s service was honest and faithful but significant negative aspects of his conduct or performance of duty outweighed the positive aspects of his service record, and the awarded characterization of service was warranted. 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 . 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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