Upgrade.Vet

NAVY | DRB | 2007_Navy | ND0701096

Original file (ND0701096.rtf) Auto-classification: Denied

ex-ABF3, USNR

Current Discharge and Applicant’s Request

Application Received: 20070806

Characterization of Service Received:

Narrative Reason for Discharge: FRAUDULENT ENTRY INTO MILITARY SERVICE
Authority for Discharge: MILPERSMAN 3630600

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

Summary of Service

Prior Service:
Inactive: US N R          19880523 - 19881010 Awaiting ACDU                 Active: USNR 19 8810 11-199 40210 HON
Inactive: USNR          19 94021 1 - 199 51203
Period of Service Under Review:
Date of Enlistment: 19960318      Period of enlistment : Years Extension          Date of Discharge: 19970307
Length of Service : Yrs Mths 20 D ys      Education Level:         Age at Enlistment:       AFQT: 24
Highest Rank /Rate : ABF3 Evaluation marks: Performance: 5.0 ( 1 )     Behavior: 4.0 ( 1 )          OTA: 4.17 (5.0 scale)
Awards and Decorations ( per DD 214): Rifle Pistol BER (4)

Periods of UA /C ONF :

C C :
         19930406 : Offense: Simple assault and criminal conspiracy , remaining charges were dismissed . Sentence – 2 years, unsupervised probation for each charge, probation to run concurrently, and required to pay $45.00 in fines and court costs within 6 months .

Types of Documents Submitted

Related to Military Service:      DD 214:          Service and/or Medical Record:          Other Records:

Related to Post-Service Period:
         Employment:                        Finances:                          Education /Training :
         Health/Medical Records:          Substance Abuse:                           Criminal Records:
         Family/Personal Status:          Community Service:                References:

Additional Statements From Applicant:             From Representat ion :              From Member of Congress:
Other Documentation (Describe)

Pending results of hearing.

NDRB Documentary Review Conducted (date):        19981214
NDRB Documentary Review Docket Number:   ND98-00306
NDRB Documentary Review Findings:                 No change warranted

Applicant Testified:
Applicant Available for Questions:
Witnesses:
Observers:

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

Applicant’s Issues

1. The Applicant claims his character of service warrants upgrade because he failed to report his civil conviction due to bad advice given to him by his recruiter.

2. The Applicant request the board consider his post service conduct in assessing the merits of his application.

Decision

Date: 20 08 0515 Location: Washington D.C R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall FRAUDULENT ENTRY INTO MILITARY SERVICE .

Discussion

Issue 1 ( ) PERTAINING TO THIS ISSUE : The Applicant claims his character of service warrants upgrade because he failed to report his civil conviction due to bad advice given to him by his recruiter. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention the recruiter misled him through the recruitment process. The Applicant ’ s statements alone do not overcome the government ’ s presumption of regularity in this case.

Issue 2 ( ) : The Applicant requests the board consider his post service conduct in assessing the merits of his application. The Board found the Applicant ’ s post-service conduct was sufficiently creditable to warrant an upgrade to his characterization of service to general (under honorable conditions). The Applicant ’ s career progression, community service accomplishments , and strong references demonstrated he possessed character and drive that was not evident during his tour of active duty. His pos t -service actions demonstrate his misconduct while in service was most likely an isolated event not reflective of his overall character. However, the Board found the Applicant ’ s post-service conduct does not sufficiently mitigate his misconduct while on active duty to warrant full relief in the form of an honorable discharge.

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall . : either which the Board cannot form the basis of relief for the Applicant, or the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum regarding .

Issue ( ).

Issue ( ).

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that

Pertinent Regulation/Law

A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 03 Oct 96 until 11 Dec 97, Article 3630100, SEPARATION OF ENLISTED PERSONNEL BY REASON OF DEFECTIVE ENLISTMENTS AND INDUCTIONS - FRAUDULENT ENTRY INTO THE NAVAL SERVICE .

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 .

C. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 81(conspiracy) and 128(assault) (these charges were issued as part of a civilian conviction .

ADDENDUM: Information for the Applicant

Complaint Procedures : If you believe that 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 : Subsequent to a document review, former members are eligible for a personal appearance hearing, provi ded the application is received at the NDRB within 15 years from the 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. If a former member has been discharged for more than 15 years , has already been grante d a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits: The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board. 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.

Employmen t / Educational Opportunities : The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’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 Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. Additionally, the Board 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 subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, 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 “PTSD . ” Only the Board for Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge 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. Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.

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 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.

Board Membership: The names and votes of the members of the 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

Recorder Review of Discharge Process

Notification :
Applicant accurately notified of reason for discharge?                     Yes      No       Not found in record
Applicant accurately notified of least favorable characterization?       Yes      No       Not found in record
Applicant accurately notified of applicable rights?                        Yes      No       Not found in record

Rights Elected : Not found in record               Waived all rights
Counsel          Copies Statement                GCMCA review     Administrative Board

Administrative Board      Not applicable          Waived          Not found in record
Reason(s) for discharge supported?                                           Yes      No       Not found in record
Recommendation?          Retain Separate
Recommendation for suspension?                                       Yes      No       Not found in record

CO recommendation:                Retain Separate

Proper Separation Authority ?                                          Yes      No       Not found in record
Reason for discharge directed: -
Characterization directed:

Were factual requirements for separation met?                      Yes      No       Not found in record
Was retention warning required for reason for separation?                 Yes      No
         Was retention warning given?                                Yes      No       Not found in record
COSO: Was punitive discharge authorized for offense?              Yes      No       Not found in record

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NAVY | DRB | 2007_Navy | ND0701096

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