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Docket No. ND01-00517

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

ex-SN, USN
Docket No. ND01-00517

Applicant’s Request

The application for discharge review, received 010316, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The applicant requested a documentary record discharge review.  The applicant listed the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010928.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: ENTRY LEVEL SEPARATION/Fraudulent entry, authority: NAVMILPERSMAN, Article 3630100.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  (Equity Issue) This former member avers that his uncharacterized discharge is inequitable because he did not intentionally conceal his pre service history and because he was doing what his recruiter told him to do.

Documentation

In addition to the service record, the following additional documentation, submitted by the applicant, was considered:

Statement from applicant dated January 1, 2001

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Active:   None
	Inactive: USNR (DEP)	870423 - 870427	COG

Period of Service Under Review:

Date of Enlistment:  870428		Date of Discharge:  870805

Length of Service (years, months, days):

	Active:    00  03  08
	Inactive:  None

Age at Entry:  24			Years Contracted:  4

Education Level:  14			AFQT:  37

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA		Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None
Character, Narrative Reason, and Authority of Discharge (at time of issuance):

ENTRY LEVEL SEPARATION/Fraudulent entry, authority:  NAVMILPERSMAN, Article 3630100.

Chronological Listing of Significant Service Events:

870423:	Application for Enlistment (DD Form 1966): Applicant failed to disclose possession of marijuana under 25 gms on 830223; 830302 applicant was found guilty and sentenced to pay a fine of $100, plus $25 VCCB, 850307 possession of marijuana under 25 gms; 850308 found guilty and sentenced to pay fine of $100, plus $25 VCCB.  The second count of hindering prosecution was dismissed.  870326 improper behavior and resisting arrest; failed to appear 870709 and a warrant for arrest was issued with a cash bail of $350.  Note: On the second arrest a 30 day suspended sentence was given on the first charge. 

870724:	Applicant notified of intended recommendation for discharge with an entry level service by reason of defective enlistment and induction due to fraudulent entry as evidenced by unrevealed pre-service civil involvement with police or judicial authorities.

870723:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

870730:	Commanding officer directed discharge with an entry level separation by reason of defective enlistment and induction due to fraudulent entry. 

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 870805 with an entry level separation by reason of defective enlistment and induction due to fraudulent entry (A).  The Board presumed regularity in the conduct of governmental affairs (B).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

The applicant’s issue states:  “(Equity Issue) This former member avers that his uncharacterized discharge is inequitable because he did not intentionally conceal his pre service history and because he was doing what his recruiter told him to do.”  The Board found no evidence in the record supporting this issue.  The applicant admitted some of his criminal activities on his enlistment contract but chose to omit other convictions.  The record shows the applicant was found guilty of possession of a controlled substance.  His non disclosure at the time of enlistment formed the basis of the fraudulent enlistment.  The Board found the discharge accurately describes the applicant’s service.  Relief is not warranted.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 7/86, effective 
16 Dec 86 until 19 Dec 93, Article 3630100, SEPARATION OF ENLISTED PERSONNEL BY REASON OF DEFECTIVE ENLISTMENTS AND INDUCTIONS DUE TO FRAUDULENT ENTRY INTO NAVAL SERVICE.

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

PART IV - INFORMATION FOR THE APPLICANT

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 Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive.  You should read Enclosure (5) of the Directive 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 Directive 1332.28 and other Decisional Documents by going online at "afls10.jag.af.mil". 

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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
INDEX:  A2900/A9455/A9237