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NAVY | DRB | 2009_Navy | ND0901289
Original file (ND0901289.rtf) Auto-classification: Denied

ex-BM2, USN
Current Discharge and Applicant’s Request
Application Received: 20090413
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: USNR (DEP)     20010210 - 20010816              Active:   20010817 – 20050526 HON

Period of Service Under Review:
 Date of Enlistment: 20050527     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20050923      Highest Rank/Rate: BM2
Length of Service : Y ear ( s ) M onth ( s ) 28 D a y ( s )
Education Level:        AFQT: 41
Evaluation M arks:         Performance: 4.0 ( 2 )      Behavior: 3.5 ( 2 )        OTA: 3.57

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

Periods of UA /C ONF :

NJP :

S CM :

SPCM:

C C : NFIR

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 20010817 UNTIL 20050526”
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:           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 12, effective 28 July 2005 until Present,
Article 1910-144, Separation by Reason of Misconduct - Civilian Conviction.

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. No nd ecisional issue . The Applicant desires to attend college and use his G.I. Bill benefits.
2. Decisional issue. The Applicant states his discharge was based on a civilian traffic misdemeanor and asks for consideration of his achievements.

Decision

Date: 20 0 9 1217         Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall MISCONDUCT .
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 Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant was discharged due to a civilian conviction. He received a General (Under Honorable Conditions) characterization of service. The NDRB did not have access to the Applicant’s administrative separation package to determine whether or not the Applicant waived his right to consult with qualified counsel, submit a written statement, and request an a dministrative b oard.

 : (Nondecisional) On 26 May 2005, t he Applicant completed 4 years of service and was awarded an Honorable discharge. He reenlisted on 27 May 2005, but h e was dischar ged 37 days later for misconduct as a result of a civilian conviction for an undisclosed offense. He received a General (Under Honorable Conditions) discharge for this period of service. The Applicant would like to attend college using his G.I Bill 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.
 The Applicant is directed to the Addendum , specifically the paragraph concerning , regarding .

: Decisional ( ) . The Applicant states he was discharged based on a civilian traffic misdemeanor conviction. He feels he served honorably and would like his discharge characterization to reflect this. The Applicant’s first period of service was honorable and his discharge reflects this. A r eview of his service records produce no record of the severity of the civilian offense for which the Applicant was convicted during his second enlistment which le d to his premature release from his second enlistment contract . His discharg e paperwork complies with MILPERSMAN instructions for administrative separation. The Applicant produces no documentary evidence to support his claim he was convicted of a minor traffic misdemeanor, thus his discharge was too harsh and inequitable. As previously noted, without evidence to the contrary, the NDRB must presume that the government acted with propriety and equity and the characterization of service is warranted. Relief is denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, discharge process and evidence submitted by the Applicant, the Board found Therefore, the awarded characterization of service shall remain General (Under Honorable Conditions and the narrative reason for separation shall remain Misconduct.

The Applicant remains eligible for a personal appearance hearing for a period of fifte en years from the date of his discharge , 23 September 2005 . 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 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 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 Board for Correction of Naval Records (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 subsequently is processed for an administrative involuntary separation or is referred to a court martial 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 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 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 NDRB 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 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 B oard 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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