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NAVY | DRB | 2014_Navy | ND1401649

Original file (ND1401649.rtf) Auto-classification: Denied

ex-YN3, USN

Current Discharge and Applicant’s Request

Application Received: 20140902

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:         US N R (DEP)        NONE      Active:

Period of Service Under Review:
Date of Current Enlistment: 20040429     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20110216      Highest Rank/Rate: YN3
Length of Service:
         Inactive:        Y ear( s ) M onth( s ) 29 D a y ( s )
         Active   Y ear( s ) M onth( s ) 20 D a y ( s )
Education Level:        AFQT: 76
Evaluation M arks:         Performance: 3.5 ( 6 )      Behavior: 3.0 ( 6 )        OTA: 3.37

Awards and Decorations ( per DD 214):      Rifle JSCM JSAM JMUA NDSM ICM GWOTSM

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 seeks a change to his RE-code.
2.       The Applicant contends he was wron gly discharged from a drilling s tatus.
3.       The Applicant contends he was told he would be transferred to the I ndividual Ready Reserve (I RR ) .
4 .       The Applicant contends his notification of separation went to several different addresses , and he never received it.
5.       The Applicant contends he was an exemplary Sailor.

Decision

Date : 20140911            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 included no NAVPERS 1070/613 (Page 13) warnings and no misconduct resulting in nonjudicial punishment or court-martial. However, the record shows the Applicant received at least 9 unexcused absences from required training in a 12-month period. Based on the Applicant ’s unsatisfactory participation in the Ready Reserve , command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant failed to respond to written notification , which constit ut ed a waiving of rights to consult with a qualified counsel, submit a written statement, and request an administrative board .

: (Nondecisional) The Applicant seeks a change to his 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 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.

: (Decisional) ( ) . The Applicant contends he was wrongly discharged from a drilling s tatus. The Applicant contends he was either present for the annotated missed drills or they were authorized absences. In reviewing discharges, the NDRB presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. A review of the Applicant’s Navy Standard Integrated Personnel System (NSIPS) account shows that he had unexcused drills for February 2010 (4 drills), April 2010 (4 drills), and May 2010 (4 drills), thus meeting the requirements to be administratively separated for Unsatisfactory Participation in the Ready Reserve. The Applicant submitted muster sheets for those three months that confirm he was mustered as absent during those drill periods. On each muster sheet, the Applicant annotated that he was “present in Medical & Supply” (Feb 2010), “SIQ via phone” (April 2010), and “authorized absence by unit LPO” (May 2010). Other than his handwritten annotations, however, the Applicant provided no evidence, such as e-mails, letters, memos, or other written documentation to corroborate his contentions that he was present for the required drills. In addition, the Applicant provided un endor sed orders for A nnual T raining (AT) f rom 09 July to 22 July 2010 and Active Duty for Training (ADT) from 03 August to 03 Sep tember 2010. His NSIPS record shows he received authorized absences for required drills during July, August, and September 2010, which aligns with the Applicant’s contention that he was on AT and ADT orders during these drill periods. Based upon his unexcused absences from February, April, and May 2010, Navy Operational Support Center (NOSC) Shreveport, LA properly discharged the Applicant for Unsatisfactory Participation in the Ready Reserve. The NDRB determined the Applicant’s written comments do not refute the presumption of regularity that he had at least nine unauthorized absences in a 12-month period. Relief denied.

: (Decisional) ( ) . The Applicant contends he was told he would be transferred to the IRR. In reviewing discharges, the NDRB presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The record contains the approved request where the A pplicant was authorized to transfer to the IRR on or about 18 September 2009 . The record also shows the Applicant re -affiliated with a drilling unit out of NOSC Shreveport, LA in a paid status in January 2010 . According to the NSIPS record, the Applicant then had unexcused absences in February, April, and May 2010 and paid drills in January, March, and June 2010. While the Applicant contends he was told he would be transferred to the IRR, there is no request for transfer to the IRR in 2010 as there was for 2009 in either his record or submitted by the Applicant. The Applicant refers to a handwritten notation on the October 2010 unit muster sheet that he contends proves he was transferred to the IRR. This handwritten notation does not constitute an official transfer to the IRR, nor does it refute the presumption of regularity that he was properly discharged for Unsatisfactory Participation. T he NDRB determined the evidence in the record and the documents provided by the Applicant do not demonstrate that the Applicant was improperly separated for Unsatisfactory Participation. Relief denied.

4 : (Decisional) ( ) . The Applicant contends his notification of separation went to several different addresses , and he never received it. It was the Applicant’s responsibility to keep his command and the NOSC notified of current contact information. The service record clearly shows NOSC Shreveport made several attempts to contact the Applicant concerning the administrative separation process , including mailing the separation notice to the Tyler, TX address that was on the Applicant’s July and August 2010 AT and ADT orders . In the 8 February 2011 recommendation for administrative separation to Commander, Navy Personnel Command, the Commanding Officer, NOSC Shreveport (the same officer who the Applicant contends agreed to move the Applicant to the IRR) stated, “[Applicant] is an unsatisfactory driller in the Naval Reserve and has failed to contact his unit chain of command or this command in regards to his drill participation. All avenues have been exhausted to resolve his unsatisfactory participation through other means. His continued failure to meet basic requirements as a member of the Selected Reserve forces me to process him for administrative separation. [Applicant] has received more than 9 unauthorized absences in a 12-month period. He did not respond to letters sent to him notifying him of unauthorized absences. I recommend that he receive a General discharge. ” There is absolutely no evidence that the Applicant was deceived or treated unfairly. After a thorough review of the records, the NDRB determined his discharge was warranted and proper. Relief denied.

Issue 5: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends he was an exemplary Sailor. The Applicant received an Honorable characterization of service for his active-duty enlistment from August 2004 to June 2008. Each period of enlistment is an independent obligation and characterization is determined for that specific period of time. During his Navy Reserve enlistment, he acquired more than 9 unauthorized absences in a 12-month period and met the requirements to be administratively separated for Unsatisfactory Participation. After a complete review of the records in his current enlistment, the NDRB determined the quality of the member’s service was honest and faithful but significant negative aspects of his conduct or performance of duty outweighed the positive aspects of the member’s service record, and the General discharge was warranted and was completely in line with what others received for similar service. 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 | ND1401649

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