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NAVY | DRB | 2014_Navy | ND1400440
Original file (ND1400440.rtf) Auto-classification: Denied

ex-MT2, USN
Current Discharge and Applicant’s Request
Application Received: 20140106
Characterization of Service Received:
Narrative Reason for Discharge: NON-RETENTION ON ACTIVE DUTY
Authority for Discharge: MILPERSMAN Article 1910-120 [HIGH YEAR TENURE]

 Applicant’s Request:      Characterization change to:      
         Narrative Reason change to:       SUFFICIENT SERVICE FOR RETIREMENT
        
Summary of Service

Prior Service:
Inactive:         US N R (DEP)        19871027 - 19880906     Active:            19880907 - NFIR
                                             19960906 - NFIR
                                   
Period of Service Under Review:
Date of Current Enlistment: 2002 0710     Age at Enlistment:
Period of E nlistment : Years 21 Extension
Date of Discharge: 20070118      Highest Rank/Rate: MT1
Length of Service: Y ear( s ) Month(s) 9 D ay(s)
Education Level:        AFQT: 68
Evaluation M arks:         Performance: 3.9 ( 7 )      Behavior: 3.3 ( 7 )        OTA: 3.64

Awards and Decorations ( per DD 214):      Rifle Pistol (2) (5) (2) (2) (4) (3) SSDP (9 patrols)

Periods of Time Lost per DD Form 214 : 20060131 - 20060131, 1 day; 20060206 - 20060212, 7 days;
20060316 - 20060511, 57 days

NJP :

- 20060605 :      Article (Absence without leave , 2 specifications )
         Article 87 (Missing movement)
         Awarded: Suspended:
         [Extracted from Evaluation Report & Counseling Record dated 20060604]

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 :        




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

Applicant’s Issues

 1 .        The Applicant c ontends his narrative reason on his DD Form 214 is inconsistent with Navy guidelines recognizing 18 years of active duty service.
 2 .       The Applicant contends his case does not satisfy the criteria in Naval Military Personnel Manual ( MILPERSMAN ) Article 1160 - 120 (High Year Tenure) .
3 .       The Applicant contends his involuntary separation neglects MILPERSMAN Article 1910-404 ( Notice of A dministrative Board Procedure).

Decision

Date : 20 1 4 0403             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. The Applicant’s record of service in his current enlistment included for o f the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave, 2 specifications) and Article 87 (Missing movement) . The Applicant ’s DD Form 214 has a narrative reason of Non-Retention on Active Duty in Block 28 . The Applicant’s administrative discharge cover letter includes Enclosure (1) as Administrative Separation Processing Notice - Administrative Board Procedure, yet Enclosure (1) was not found in his service record. As a result, the NDRB could not determine if he elected or waived his rights to consult with a qualified counsel, submit a written statement, and request an administrative board or a General Court-Mart ial Convening Authority review.

Issue 1: (Nondecisional) The Applicant contends his narrative reason on his DD Form 214 is inconsistent with Navy guidelines recognizing 18 years of active duty service and should be change to Sufficient Service for Retirement. The NDRB does not have the authority to change the Narrative Reason for Separation to Sufficient Service for Retirement. This is a request that the Board for Correction of Naval Records (BCNR) can grant. The Applicant may petition the BCNR, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149.

Issues 2-3 : (Decisional) ( ) . The Applicant contends his case does not satisfy the criteria in MILPERSMAN Article 1160-120 ( High Year Tenure ) , and his involuntary separation neglects MILPERSMAN Article 1910-404 (Notice of Administrative Board Procedure). On 5 June 2006, the Applicant was found guilty at NJP for violating two specifications of UCMJ Article 86 and one specification of Article 87. As punishment, he was reduced in rank to E-5. From indications on his DD Form 214 and Admin Discharge letter from Commanding Officer, Transient Personnel Unit Puget Sound, the NDRB concluded that he may have been separated for High-Year Tenure as a result of his reduction in rank . However, i n accordance with MILPERSMAN Article 1160-120 (High-Year Tenure) , t he Applicant’s Active Duty Service Date , which was prior to 30 June 1995 , would allow an E-5 to reach 20 years of service. In addition, any High - Year Tenure restriction would still allow a service member to complete his current enlistment and would not require notification of separation proceedings . The Applicant’s record , however, shows that he was involuntarily separated prior to the end of his enlistment contract, and he received notification of separation proceedings . As a result, the NDRB determined t he involuntary separation and notification of separation proceedings indicates he was not administratively processed for High-Year Tenure . Therefore, the NDRB determined his narrative reason of Non-Retention on Active Duty (which would have been correct for a High-Year Tenure discharge) is incorrect.





Further, the Applicant’s Admin Discharge letter from Commanding Officer, Transient Personnel Unit Puget Sound references MILPERSMAN Article 1910-120 , which details the process for administrative separation based on a Condition, Not a Disability. The Applicant’s service and medical records indicate that he had a history of alcohol abuse and substance abuse rehabilitation treatment; the medical record dated 07 July 2006 shows the Applicant was diagnosed with Alcohol Dependence (DSM-IV 303.90) . In accordance with MILPERSMAN Article 1910-120, separation for Uncomplicated Alcoholism or Other Substance Use Disorder would have been warranted. However, since the Applicant’s Administrative Separation Processing Notice - Administrative Board Procedure was not found in his record, the NDRB does not definitively know if he was notified of separation processing for Condition, Not a Disability. The Applicant contends the Administrative Separation Processing Notice - Administrative Board Procedure found in MILPERSMAN Article 1910-404 is typically used for misconduct processing, however, this form is used for other administrative processing such as Condition, Not a Disability. After a complete review of the records, the NDRB voted to change the Narrative Reason for Separation to Secretarial Authority. Partial relief granted. Full relief by changing the narrative reason to Sufficient Service for Retirement was not granted as the NDRB does not have the authority to make that determination.
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 that although the narrative reason was inaccurate , Therefore, the awarded characterization of service shall but the narrative reason for separation shall . 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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