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P. Simmons
P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 26281
Experience:  Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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I believe I was separated from the Navy incorrectly in Aug

Resolved Question:

I believe I was separated from the Navy incorrectly in Aug 2012. My DD214 states my separation code to be GKB and narrative as being for a civilian conviction (DUI) I had Jan/2010. Can I be discharged for something years later? I reported my DUI myself and served 45/45/etc.
Submitted: 1 year ago.
Category: Military Law
Expert:  P. Simmons replied 1 year ago.
Thanks for the chance to help. I am an attorney with over 12 years military law experience.

That depends.

Did the Navy run an administrative separation process on you? Did they give you notice in writing, and the chance to respond to the allegations?
Customer: replied 1 year ago.

Yes, I was adseped and I was suppose to be processed out for MILPERSMAN 1910-152 and instead under MILPERSMAN 1910-144 on my DD214. I spoke with the JAG at Naval Base SD when I received my the info with what my discharge was going to be and his words were, "This is incorrect, and I believe you should be processed with an honorable through MILPERSMAN 1910-152, but you have no control because the JAG at the hospital is it's own convening authority due to having a higher ranking officer." So can I change this or is it even worth the time and effort to try?

 

I believe I am ineligible for my GI Bill with my General under honorable, but with an honorable I am.

Expert:  P. Simmons replied 1 year ago.
Thanks

I want to make sure I understand...you were processed under MILPERSMAN 1910-144 (civilian conviction) and not 152 (DUI)?
Customer: replied 1 year ago.

Yes I was processed un 1910-144 but it was supposed to be for treatment failure. I had a DUI in Jan 2010 and in July 2012 I was referred by my LPO to SARP. I was told I wouldn't have contact with my family who lived overseas that much and I refused treatment. I then was being processed for ADSEP. When about to sign paperwork it said my narrative as misconduct and civilian conviction... I argued but it didn't make a difference as I was an E3 talking to an E8.

Expert:  P. Simmons replied 1 year ago.
Thank you

But I am sorry to have to bear bad news.

It is unlikely you will be able to upgrade this discharge. For a few reasons

First, when a commander is presented with a Sailor who is eligible for separation based on more than one basis (as in your case) the commander gets to decide which basis to select. The JAG you spoke with, I fear, was confused, or perhaps just did not understand the law.

So if they processed you for the conviction (if that is what you were served notice for)? Then it is unlikely you can challenge that and win.

Had the processed you for one thing, but discharged on another? For example, had they given you notice they were processing for the treatment failure but actually used the conviction as a basis? Then you could challenge the separation.

But if they gave you notice, and you had the DUI (it sounds like more then one of them)? They can process you for that. The fact you reported it, or that it was old, or that you went to mast does not prevent the commander from using that as a basis.

The other problem you face is that you received an honorable discharge and both basis can award an honorable discharge...so even if they used the wrong basis, it is unlikely you would be able to upgrade to an honorable.


I am sorry to have to bear bad news.

Customer: replied 1 year ago.

No problem. I just was curious as I feel they intentionally discharged me in a negative fashion to bar me from all military benefits even though I had less than 6 months before I would have fulfilled my contract. Another thing noted to me per the LT at Naval Base San Diego JAG was that there are many reports of false discharges but they can't challenge it due to the hospital being a special convening authority.... All in all I'm ok due to the fact I live overseas now, but I was still curious because I believe I am not eligible for any and all veteran benefits with a Gen(under honorable).

Expert:  P. Simmons replied 1 year ago.
You are eligible for VA benefits with a general EXCEPT for the GI bill. You will rate all other VA benefits.

P. Simmons, Military Lawyer
Category: Military Law
Satisfied Customers: 26281
Experience: Retired Marine Corps lawyer and Veterans Services Officer (VSO) with 12+ yrs. of experience.
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