Upgrade.Vet

NAVY | DRB | 2014_Navy | ND1400825

Original file (ND1400825.rtf) Auto-classification: Denied

ex-MA2, USN

Current Discharge and Applicant’s Request

Application Received: 20140404

Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
Inactive:         NONE              Active:

Period of Service Under Review:
Date of Current Enlistment: 20040523     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20111223      Highest Rank/Rate: MA1
Length of Service:
         Inactive:        Y ear( s ) M onth( s ) 23 D a y ( s )
         Active   Y ear( s ) M onth( s ) 08 D a y ( s )
Education Level: +       AFQT: 89
Evaluation M arks:         Performance: 3.5 ( 3 )      Behavior: 3.8 ( 3 )        OTA: 3.68

Awards and Decorations ( per DD 214):      Rifle Pistol NRMSM (2) OSR AFRM WITH “M” DEVICE EEWS

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 he was an MA1, and several records that show him as an MA2 are in error.
2 .        The Applicant contends he was voluntarily transferred to the I ndividual Ready Reserve (I RR ) and was not required to participate in drill periods.

Decision

Date : 20 1 4 0904             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 12 periods of unexcused absences from required Navy R eserve drills in a 12- month period during 2011. The Applicant’s Navy Standard Integrated Personnel System (NSIPS) record shows the Applicant had unexcused drills in March 2011 (4 drills) , July 2011 (4 drills) , and August 2011 (4 drills ) . The Applicant’s NSIPS record also shows he had authorized absences for drills in November 2010 and January 2011 and received points for attending drills in April and June 2011 . Based on the Applicant’s unexcused absences during 2011, command administratively processed for separation. When notified via certified mail of administrative separation processing using the procedure, the Applicant did not respond to the notification , which constitutes a waiver of his rights to consult with a qualified counsel, submit a written statement, and request an administrative board .

Issue 1: (Nondecisional) The Applicant contends he was an MA1, and several records that show him as an MA2 are in error. The NDRB acknowledges there are discrepancies in what the Applicant’s rank was at discharge, however, the NDRB is not authorized to adjudicate issues related to rank and paygrade. The Applicant can apply to the Board for Correction of Naval Records using DD Form 149 to contest his discharge rank of MA2.

: (Decisional) ( ) . The Applicant contends he was voluntarily transferred to the IRR and was not required to participate in drill periods. The Applicant submitted to the NDRB a draft request to transfer to the IRR and stated that the approved request was destroyed by PSD North Island, CA. A review of the Applicant’s NSIPS record shows that he was transferred to a Volunt eer Training Unit (VTU), which is considered to be in the IRR. Though Reservists in a VTU do not receive drill pay, they are still required to attend drills. The Applicant’s NSIPS record shows that he had authorized absences for drills in November 2010 and January 2011, followed by unexcused absences in March, July, and August 2011. Most importantly, the Applicant received credits for attending drills in April and June 2011. After exceeding nine unexcused absences in a 12-month period in August 2011, Navy Operational Support Center (NOSC) North Island sent a notification of administrative separation processing via certified mail on 13 October 2011 to the Applicant’s home address, which is the same address he listed on his DD Form 293 application to the NDRB in March 2014. The U.S. Postal Service confirmed delivery of the notification to the Applicant’s address on 17 October 2011. The Applicant, however, did not return the notification of separation proceedings, which constituted a waiver of his rights to consult with counsel, to submit a statement, and to appear before an administrative discharge board. After a complete review of the records, the NDRB determined he was transferred to the IRR but was in a VTU that required him to maintain a satisfactory drilling status, and NOSC North Island properly and equitably discharged him for Unsatisfactory Participation. 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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NAVY | DRB | 2014_Navy | ND1400825

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