ex-ET2, USN

Current Discharge and Applicant’s Request


Applicant’s Request:     Characterization change to:     
         Narrative Reason change to:      NON-RETENTION ON ACTIVE DUTY
         Reentry Code change to:

Summary of Service

Prior Service:
Inactive:        USNR (DEP)       20000621 - 20000815     Active:           20000824 - 20040823
         USNR (DEP)       20000816 - 20000823
                  20040824 - NFIR NFIR
         USNR (DEP)       20070525 - 20070610

Period of Service Under Review:

Date of Current Enlistment: 20070611    Age at Enlistment:
Period of Enlistment: Years Extension
Date of Discharge: 20131228     Highest Rank/Rate: ET2
Length of Service: Year(s) Month(s) 18 Day(s)
Education Level:        AFQT: 80
Evaluation Marks:        Performance: 3.86 (7)    Behavior: 3.71 (7)      OTA: 3.84

Awards and Decorations (per DD 214):     (2) (2)

Periods of Time Lost:   NJP:     SCM:     SPCM:

CC: [Extracted from Evaluation Report & Counseling Record covering 5 May 2012 to 15 May 2013]

- 20130306:      Offense: Driving with a BAC of .08% or greater
         Sentence: Five years probation, completion of an alcohol education program, fines in the amount of $2625.00, 96 hours confinement in jail

Retention Warning Counseling:

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

         “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 000824 UNTIL 040823”

The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate.





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:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        

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 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 contends his discharge is improper as his current narrative reason for separation and re-enlistment code has prevented him from receiving his involuntary separation pay entitlement.

Decision

Date: 20141230            Location: Washington D.C.        Representation:

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 discharge if such change is warranted. In reviewing discharges, the Board 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 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 one civil conviction by the Superior Court of California, County of San Diego for violation of California Vehicle Code 23152(b)—Driving with a BAC of .08% or greater. Based on the expiration of the Applicants service obligation and his denial of re-enlistment, the Applicant was discharged from the service.

: (Nondecisional) The Applicant contends his discharge is improper as his current narrative reason for separation and re-enlistment code has prevented him from receiving his involuntary separation pay entitlement. The NDRB has no authority to change a discharge for the sole purpose of providing a member involuntary separation pay. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge. The board conducted a detailed review of the Applicant’s service record. The NDRB found that while the Applicant had not yet reached high year tenure for his paygrade, he was nonetheless denied reenlistment and was not processed for an administrative separation due to the civil conviction for driving under the influence cited as the reason for his re-enlistment denial. The NDRB noted the current narrative reason for separation, separations code, and separations authority does not typically correspond with the assigned RE-Code; however, his 1.0 marks on his evaluation covering his misconduct warrant the assignment of his RE-4 code according to MILPERSMAN 1160-030 as they occurred both within one year of his EAOS and re-enlistment request. 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. Acknowledging this, the NDRB does not view the Applicant’s narrative reason for separation as improper solely due to his denial of re-enlistment. The NDRB does consider the Applicant’s separation code to potentially be in error as he was involuntarily separated at the end of his enlistment due to his denial of re-enlistment and entry into the inactive ready reserve. The Applicant’s current separations code, KBK, indicates a voluntary discharge whereas other separations codes such as JBK (Involuntary discharge, no board) and LBK (Involuntary release or transfer to another service component) may be more appropriate. The NDRB notes that this change alone may not entitle the Applicant to separation pay due to his RE-Code according to the references the Applicant enclosed as part of his application to the NDRB. The Applicant must petition to the Board of Correction for Naval Records to change the appropriate discharge codes on his DD Form 214 and potentially gain involuntary separations pay. This is not an issue on which the NDRB can render a decision.

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 HONORABLE and the narrative reason for separation shall remain COMPLETION OF REQUIRED SERVICE.

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