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NAVY | DRB | 2015_Navy | ND1501140

Original file (ND1501140.rtf) Auto-classification: Denied

ex-BM2, USNR

Current Discharge and Applicant’s Request

Application Received: 20150522

Characterization of Service Received: GENERAL (UNDER HONORABLE CONDITIONS)

Narrative Reason for Discharge: UNSATISFACTORY PARTICIPATION
Reenlistment Code: RE-4
Authority for Discharge: MILPERSMAN 1910-158 [UNSAT PARTICIPATION IN READY RESERVE]

Applicant’s Request:     Characterization change to:      HONORABLE
         Narrative Reason change to:      NONE REQUESTED

Summary of Service

Prior Service:
Inactive:        NONE              Active: NONE

Period of Service Under Review:
Date of Current Enlistment: 20030530    Age at Enlistment: 21
Period of Enlistment: 8 Years NO Extension
Date of Discharge: 20100820     Highest Rank/Rate: BM2
Length of Service:
Inactive: 07 Year(s) 02 Month(s) 22 Day(s)
Active: 00 Year(s) 00 Month(s) 00 Day(s)
Education Level: 12     AFQT: 48
Evaluation Marks:        Performance: 3.4 (7)     Behavior: 3.1 (7)       OTA: 3.41

Awards and Decorations: NDSM GWOTSM NRMSM

Periods of UA/CONF: NONE

NJP: NONE        SCM: NONE        SPCM: NONE       CC: NONE         Retention Warning Counseling: NONE

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. 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)(a), 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 that she was not paid for reserve drills that she attended.
2.       The Applicant contends that she was improperly separated for missing reserve drills which she did attend.

Decision

Date: 20150827   DOCUMENTARY REVIEW       Location: Washington D.C.        Representation: NONE

By a vote of 5-0 the Characterization shall remain GENERAL (UNDER HONORABLE CONDITIONS) .
By a vote of 5-0 the Narrative Reason shall remain UNSATISFACTORY PARTICIPATION .

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 completed a thorough review of the circumstances that led to her discharge and the discharge process to ensure her 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 twelve unexcused drills in a twelve month period, her command administratively processed her for separation. When notified of administrative separation processing using the notification procedure via certified mail on 02 August 2010, the package was returned to the command as undeliverable.

Issue 1: (Nondecisional) The Applicant contends that she was not paid for reserve drills that she attended. She contends that she drilled in April, May and June of 2010 but was not paid for those drills. She did not provide copies of her leave and earnings statements. The NDRB does not have the authority to correct pay discrepancies. The Applicant (using DD Form 149) may file the petition with Board for Corrections to Naval Records (BCNR), at 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490. Their website can be found at http://www.secnav.navy.mil/mra/bcnr .

Issue 2: (Decisional) (Propriety) RELIEF NOT WARRANTED. The Applicant contends that she was improperly separated for missing reserve drills which she did attend. The Applicant was initially assigned to NOSC Monterey, CA. In accordance with orders dated 16 April 2009, she was reassigned to drill at NOSC San Jose, CA in preparation for mobilization. She states her mobilization orders were cancelled in June 2010, and she continued drilling at San Jose awaiting orders transferring her back to Monterey. She contends that she drilled in April, May and June. However, the Applicant provided a copy of her IDT History Report which shows that she had four unexcused drills in November 2009, June 2010, and July 2010 totaling twelve unexcused drills in under a year which justifies separation for unsatisfactory participation. The command’s recommendation for administrative separation letter dated 12 August 2010 cites eighteen unexcused absences since her reserve affiliation.

The Applicant does not address her four unexcused absences in November 2009. She contends that she was present for drills in April through June. She was credited with excused absences for the drills in April and May, but the drills in June and July are listed as unexcused absences and counted toward her separation under unsatisfactory participation. She provided a copy of her training report, but there is no training listed in November 2009 and the last entry on the report is in April 2010 which does not support her participation during June and July. She provides a signed statement from her roommate who attests she was present for drills in March 2010 which was not a period in question and the Applicant received credit for those drills. The roommate does cite problems with roll call and pay. The Applicant does not address whether or not she reported for drills in July.

The Applicant claims she did not receive her separation notification package sent via certified mail on 02 August 2010 to her home at Santa Clara, CA. She does not address whether or not she reported for August drills, or how she became aware that separation proceedings had been initiated. She mentions problems trying to renew her military identification card at NAS Lemoore, CA in July but does state why she was attempting to renew her ID at a location three hours’ drive from her home and the two locations where she had recently drilled. She submits copies of her evaluations and cites that one is signed after her discharge. The last evaluation that she received was for the period ending 15 March 2010 from NR NSF Monterey which was not signed by the Applicant and indicates it was mailed to her after the Director signed it on 15 Sept 2010. The command should mail the report after thirty days if the member is unavailable for signature, but it is also the member’s responsibility to ensure their records are complete. The Applicant does not provide any specifics or documentation of her efforts to correct the alleged errors in her record. 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 NDRB recognizes that serving in the military is challenging. Most servicemembers, however, serve honorably and therefore earn their Honorable discharges. In fairness to those Marines and Sailors who served honorably, Commanders and Separation Authorities are tasked to ensure that undeserving servicemembers receive no higher characterization than is due. The NDRB found the characterization of the Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, and discharge process, the Board found the discharge was proper and equitable at the time of discharge. Therefore, the awarded characterization of service shall remain GENERAL (UNDER HONORABLE CONDITIONS) 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 her 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 , or http://www.secnav.navy.mil/mra/bcnr/Pages/default.aspx 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: Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code. 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 | 2015_Navy | ND1501140

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