Upgrade.Vet

NAVY | DRB | 2011_Navy | ND1102133

Original file (ND1102133.rtf) Auto-classification: Denied

ex-AM2, USN

Current Discharge and Applicant’s Request

Application Received: 20110920

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)        19980507 - 19980622     Active:          19980623 - 20020430

Period of Service Under Review:
Date of Current Enlistment: 20020501     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 200512 22      Highest Rank/Rate: AM2
Length of Service: Y ear( s ) M onth( s ) 22 D a y ( s )
Education Level:        AFQT: 52
Evaluation M arks:         Performance: 4.7 ( 3 )      Behavior: 4.0 ( 3 )        OTA: 4.19

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

Periods of UA /C ONF :

NJP :     S CM :    SPCM:    C C :      Retention Warning Counseling :

Administrative Corrections to the Applicant’s DD 214

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

         Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read: “ ENLISTED AVIATION WARFARE SPECIALIST, ENLISTED SURFACE WARFARE SPECIALIST, ARMED FORCES EXPEDITIONARY MEDAL, NATO MEDAL, NAVY UNIT COMMENDATION, SEA SERVICE DEPLOYMENT RIBBON (2), GOOD CONDUCT MEDAL (2), NATIONAL DEFENSE SERVICE MEDAL, GLOBAL WAR ON TERRORISM SERVICE MEDAL, NAVY AND MARINE CORPS ACHIEVEMENT MEDAL, BATTLE “E” RIBBON , GLOBAL WAR ON TERRORISM EXPEDITIONARY MEDAL , FLAG LETTER OF COMMENDATION ”
         “ CONTINUOUS HONORABLE ACTIVE SERVICE FROM 980623 UNTIL 020430 ”
         “ ”
         “ MILPERSMAN 1910-134 ”
         “ FRAUDULENT ENTRY ”

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:                  Oth er Documentation:
                  Additional Statements :
         From Applicant:          From /To Representation:          From /To Congress m ember :

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.       The Applicant contends his command did not provide him with a copy of his administrative separation (ADSEP) package.
2.       The Applicant contends his command did not forward a complete copy of his ADSEP package to Navy Personnel Command.
3.       The Applicant contends he was processed for separation using the Notification procedure when he warranted the Administrative Board procedure since he had more than 6 years of service.
4.       The Applicant contends he was not counseled by the Convening Authority that a waiver could be submitted to the General Court-Martial Convening Authority allowing him to stay on active duty.
5.       The Applicant contends his service was otherwise honorable.

Decision

Date: 20 1 2 1011             Location: Washington D.C .        R epresentation :

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

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 g overnment al affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. T he 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 NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived rights to consult with a qualified counsel, submit a written statement, and request an administrative board or a General Court-Martial Convening Authority review . The Applicant’s record reflects a separation code of HD A , indicating the Applicant waived his administrative board. There were also no details in the Applicant’s service records as to why he was separated for Fraudulent Entry.

: (Decisional) ( ) . The Applicant contends his command did not provide him with a copy of his ADSEP package. Further, the Applicant contends his command did not forward a complete copy of his ADSEP package to Navy Personnel Command. In the absence of a complete discharge package, the NDRB presume s regularity of governmental affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue s . The absence of an ADSEP package in his official record at Navy Personnel Command does not , by itself, warrant an upgrade in the characterization of service. Relief denied.

Issue 3: (Decisional) (Propriety) RELIEF NOT WARRANTED. The Applicant contends he was processed for separation using the Notification procedure when he warranted the Administrative Board procedure since he had more than 6 years of service. With more than 6 years of service, the Applicant w as entitled to an administrative separation board. However, the separation code of HDA on the Applicant’s DD Form 214 indicates he waived his right to an administrative separation board. With no ADSEP package in the record, the NDRB presumes regularity in the conduct of his command’s affairs. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. Relief denied.

Issue 4: (Decisional) ( ) . The Applicant contends he was not counseled by the Convening Authority that a waiver could be submitted to the General Court-Martial Convening Authority allowing him to stay on active duty. In the absence of a complete discharge package, the Board presumed regularity of governmental 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 documented evidence for the NDRB’s consideration, to support his contention. Relief denied.

Issue 5: (Decisional) (Equity) RELIEF NOT WARRANTED. The Applicant contends his service was otherwise honorable. Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the to maintain proper order and discipline. Fraudulent entry is one such offense that warrants processing for administrative separation regardless of grade, performance, or time in service. This usually results in an unfavorable characterization of discharge. An Honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for Naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate. A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects o f the member’s service record. Although details were not available as to why the Applicant was processed for Fraudulent Entry, the NDRB presumes regularity in the conduct of his command’s affairs and determined the discharge was 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 s ummary of s ervice, r ecord e ntries, and d ischarge p rocess, the Board found Therefore, the a warded characterization of service shall remain 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 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

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NAVY | DRB | 2011_Navy | ND1102133

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