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NAVY | DRB | 2014_Navy | ND1401317
Original file (ND1401317.rtf) Auto-classification: Denied

ex-MA3, USN

Current Discharge and Applicant’s Request
Application Received: 20140701
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
Inactive:         USNR     20070919 - 20071001 COG   Active:  

Period of Service Under Review:

Date of Current Enlistment: 20071002     Age at Enlistment:
Period of E nlistment : Years Extension
 Date of Discharge: 20100807      Highest Rank/Rate: MA3
Length of Service:
Inactive: Year(s) Month(s) 20 Day(s)
Active : Year(s) Month(s) 00 Day(s)
 Education Level:        AFQT: 79
Evaluation M arks:         Performance: 3.5 ( 2 )      Behavior: 3.0 ( 2 )        OTA: 3.25

Awards and Decorations (per DD 214):      Rifle Pistol

Periods of UA/CONF:

NJP :     SCM:     SPCM:    CC:      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 IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications.


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

Applicant’s Issues

 1.        The Applicant would like his RE-Code changed because he believes he can be an asset to the Navy or another branch of service as a commissioned officer .
2.       The Applicant contends he was injured while on active duty and once transferred to the reserves was unable to meet Temporary Not Physically Qualified (TNPQ) requirements due to inadequate VA care and reserve medical support .
Decision

Date : 2014 11 06             Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall .
 By a vote of the Reenlistment Code 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 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. Based on the Applicant ’s failure to adhere to his TNPQ requirements , command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant failed to respond to the notification sent by certified mail (#7009-2250-001-1592-5776) sent on 16 June 2010 and received on 18 June 2010. As a result of his failure to respond he waived rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority review.

: (Nondecisional) The Applicant would like his RE-Code changed because he believes he can be an asset to the Navy or another branch of service as a commissioned officer. 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 or commissioning opportunities. An unfavorable “RE” code is, in itself, not a bar to reenlistment or commissioning. A request for a waiver can be submitted during the processing of a formal application for reenlistment or commissioning through a recruiter or officer selection officer .

: (Decisional) ( ) . The Applicant contends he was injured while on active duty and once transferred to the reserves was unable to meet Temporary Not Physically Qualified (TNPQ) requirements due to inadequate VA care and reserve medical support . The Applicant’s service record shows he was released from the active duty portion of his enlistment contract on 28 June 2009. As a reservist, his record of service shows he was placed in a TNPQ status as documented on a NAVPERS 1070/613 dated 17 October 2009. The record also shows a certified letter (#7007 -0710-0005-2364-0624) dated 5 December 2009 was sent to the Applicant as a final notification request for documents concerning his medical condition. This letter gave the Applicant 30 days from his receipt of the letter to provide the requested documentation of face administrative separation. The record next shows that on 19 May 2010 a Medical Department Representative, Navy Operational Support Center San Diego formally recommended the initiation of the Applicant’s administrative separation due to his non-compliance with the final notification letter dated 5 December 2009. The Applicant’s command sent him an administrative separation notification by certified mail (#7009-2250-001-1592-5776) on 16 June 2010 which was received and signed for at his official residence on 18 June 2010 . The Applicant failed to respond to this notification, thereby waiving all of his rights during separation proceedings. If the Applicant believed there were mitigating circumstances, it was his obligation to contest his separation at the time he was notified . During his a dministrative s eparation proceedings , he would have had the opportunity to mount a defense against the charges and present his case to his General Court-Martial Convening Authority for review . The Applicant submitted no evidence to support his conte ntion; therefore, the NDRB relied upon the presumption of regularity in the conduct of government affairs. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall remain and the narrative reason for separation shall remain UNSATISFACTORY PARTICIPATION .

The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his 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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