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NAVY | DRB | 2009_Navy | ND0901014
Original file (ND0901014.rtf) Auto-classification: Denied

ex-AT3, USN
Current Discharge and Applicant’s Request
Application Received: 20090316
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)        20020223 - 20020428     Active:  

Period of Service Under Review:
Date of Enlistment: 20020429     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20050818      Highest Rank/Rate: AT3
Length of Service : Y ear ( s ) M onth ( s ) 20 D a y ( s )
Education Level:        AFQT: 76
Evaluation M arks:         Performance: 3.0 ( 1 )      Behavior: 3.0 ( 2 )        OTA: 2.90

Awards and Decorations ( per DD 214):     

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:           Substance Abuse:                           Criminal Records:       
         Family/Personal Status:           Community Service:                References:              
Additional Statements :
 From Applicant:        From Representat ion :    From Congress m ember :

Oth er Documentation :

Pertinent Regulation/Law

 A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 3 May 2005 until 16 May 2008,
Article 1910-134, Separation 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 .


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

Applicant’s Issues

 1. Seeking Montgomery GI Bill benefits for school.
2. Discharge was improper because it was based on pre-military service actions.
3 . Upgrade justified based on in-service performance.

Decision

 Date: 20 090903             Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall .

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 Commanding Officer’s (Center for Naval Aviation Technical Training Unit) letter of 18 August 2005, reflects that from the period of June 1996 through November 2000 t he Applicant was cited by civilian authorities for the following offenses: 1) fail ur e to stop emerging from driveway, 2) speeding, 3) allowing unauthorized person to use his vehicle, 4) no proof of insurance, 5) driving on a suspended license, 6) failing to maintain financial responsibility, 7) parking on a private lot, 8) driving without license plate on a suspended license and a seatbelt violation and 9) arrest – for traffic bench warrant. The Applicant’s c ommanding officer’s commented that t he Applicant was a dministratively processed for separation for fraudulent enlistment based on 1) his withholding of the aforementioned information contained in the citations that resulted in the withdrawal of his security clearance , a nd 2) h is decision not to convert to another rating that did not require a security clearance . The NDRB did not have the Applicant’s complete administrative separation package to determine whether or not the Applicant waived rights to consult with qualified counsel , request a review by the general court-martial convening authority and submit a written statement . In the absence of a complete administrative separation package, a presumption of regularity of governmental affairs was applied. Per the Applicant’s DD Form 214 , he was separated for fraudulent entry into the military service and given a separation code of “JDA” indicating he was not eligible for an administrative board.

: (Nondecisional) The Applicant is seeking an upgrade for the purpose of obtaining the Montgomery GI Bill benefits for educational purposes. 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.

: (Decisional) ( ) . In seeking an upgrade to Honorable, the Applicant contends his discharge was improper because it was based on “pre-military service actions.” The Applicant further contends that it was an honest mistake and that he did not deliberately withhold his pre-service debt information on his enlistment papers and that after filing bankruptcy in June 2005 , his debt was cleared . However, t he se contentions are refuted by the evidence of record as previously discussed and the Security Questionnaire , Standard Form 86 signed by the Applicant on 15 April 2002 wherein he answered “no” to questions 38 and 39 regarding financial delinquencies. The Applicant also certified this document indicating the following: 1) his statement on this form, and any attachments to it were true, complete and correct to the best of his knowledge and belief and was made in good faith, and 2) he understood that a knowing and willful false statement on this form can be punished by fine or imprisonment or both. Based on a review of the evidence of record and statement submitted by the Applicant, the NDRB determined that there was sufficient evidence to support a discharge based on fraudulent enlistment . The NDRB took note of the fact that in June 2002, the Applicant knowingly answered “ no ” to questions contained in the security clearance questionnaire regarding his financial debt in the past seven years , knowing that he had been cited for financial ir responsibility in August 99 and February 2000, a nd choosing not to convert to rating that did not require a security clearance .

: (Decisional) ( Equity ) . The Ap plicant also contends that an upgrade is justified based on the fact that he honorably served his country for 40 months, excelled at his rating and received awards. Taking into consideration the Applicant’s overall record and his conduct , which reflect ed his willful failure to meet the requirements of his contract , the NDRB determined that an upgrade to Honorable is not warranted and that his in -service performance was not sufficient to justify or mitigate the conduct which led to his discharge.

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, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct .


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 Association of Service Disable 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 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 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.
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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