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Docket No. ND02-00694

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

ex-SA, USN
Docket No. ND02-00694

Applicant’s Request

The application for discharge review, received 020417, requested that the characterization of service on the discharge be changed to honorable and the reason and separation code for the discharge be changed.  The Applicant requested a personal appearance hearing before the board in the Washington National Capital Region.  The Applicant listed a personal representative as the representative on the DD Form 293.  Subsequent to submitting the application, the Applicant obtained representation from the Disabled American Veterans.

Decision

A personal appearance discharge review hearing was conducted in Washington, D.C. on 030415.  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 at the time of issue.  The Board’s vote was unanimous that the character and narrative reason of the discharge shall not change.  The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/FRAUDULENT ENTRY INTO MILITARY SERVICE, authority:  NAVMILPERSMAN, Article 1910-134 (formerly 3630100).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.	Upgrade discharge to honorable (change fraudulent enlistment)

2.   Change separation code

Documentation

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

Statement from Applicant concerning issues dated April 4, 2003 with attached Exhibits A-H, J-N (34 pages) 
Additional DD Form 293 (2 pages)
Draft Decisional Document (6 pages)
Service record documentation (5 pages)
Letter from M_ B. A_, M.D. and L_I. R_, M.D. dated September 15, 1992
Letter from M_ B. A_, M.D. and L_I. R_, M.D. dated November 11, 1992
Letter from H_ G_ dated January 27, 1999
Letter from H_ G_ dated March 9, 1999
Letter from M_ B. A_ dated January 15, 1999
Letter from L_ A. H_ dated December 22, 1998
Letter from Applicant’s wife dated March 14, 1997
Letter from Applicant’s wife dated April 28, 1999
Dismissal of complaint dated May 3, 1999
Letter from Ensign T_ S_ dated September 9, 1998
Registration acknowledgement for Selective Service
Applicant's DD Form 214 (Member 1 and 4) (3 copies)
Letter from NAVMEDCEN dated March 5, 1999
Travel certificate, separation without orders dated April 12, 1999
Page one from U.S. Naval Criminal Investigative Service report dated February 18, 1999

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	980123 - 980128	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  980129		Date of Discharge:  990414

Length of Service (years, months, days):

	Active:    01  02  16
	Inactive:  None

Age at Entry:  31			Years Contracted:  4

Education Level:  12			AFQT:  38

Highest Rate:  SA

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:  12

*No Marks Available for review.

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/FRAUDULENT ENTRY INTO MILITARY SERVICE, authority:  NAVMILPERSMAN, Article 1910-134 (formerly 3630100).  Discharged in absentia.

Chronological Listing of Significant Service Events:

990329:	Applicant notified of intended recommendation for discharge under honorable conditions (general) by reason of defective enlistment and induction due to fraudulent entry.

990329:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected the rights to obtain copies of the documents used to support the basis for the separation and to submit a statement by 990405.

990402:	Statement submitted by civilian counsel in rebuttal to proposed separation.

990402:	Applicant to unauthorized absence 1030, 990402.

990407:	Commanding Officer recommended discharge under honorable conditions (general) by reason of defective enlistment and induction due to fraudulent entry.  Commanding Officer’s comments (verbatim): Based on a preponderance of the evidence reviewed, I determined that SR (Applicant) fraudulently enlisted into the United States Naval Service on 23 January 1998.  SR (Applicant) provided false and misleading information during the enlistment process.  The decision to enlist SR (Applicant) into the U.S. Navy was based, in part, on his misrepresentation of material facts and information.  Given the scope and gravity of the misinformation he provided, his command and subsequently the Navy has lost confidence and trust in his ability to honestly and faithfully serve.  Accordingly, his enlistment has been deemed fraudulent.
When SR (Applicant) enlisted in January 1998, he was directed to complete a Form 1966 and SF 86.  These forms were completed during the enlistment process and used to assess his potential for service.
Unfortunately, SR (Applicant) chose not to complete these forms truthfully.  Both are filled with false or falsified and misleading information.  For example, when completing the Record of Military Processing paper work DD Form 1966, SR (Applicant) claimed to be single with two dependents and that he had never married when in fact both of these entries were false.  SR (Applicant) married a U.S. Citizen in September 1991 and has remained married since then.  Additionally, when completing the National Agency Security Information Form SF 86, SR (Applicant) claimed he had never used or been known by any other name of alias.  This statement, again was false.  Based on the evidence reviewed, SR (Applicant) has, on numerous occasions involving interaction with law enforcement and Immigration Naturalization Service (INS) officials, utilized the alias F_ A_ M_ and K_ E_ W_. Furthermore, SR (Applicant) claimed on his SF 86 that he had not traveled outside of the U.S. in the last seven years.  Yet, on his naturalization application he clearly indicates that he traveled to Jamaica to visit relatives from November 1994 to February 1995.
SR (Applicant's) web of deception continued when he provided information to the effect that he entered the United States on 23 September 1993, via Philadelphia, Pennsylvania.  It was later discovered that SR (Applicant) in fact entered the United States on 21 June 1990, in Atlanta, Georgia.  Of greater importance is SR (Applicant's) failure to state and/or admit that INS agents in Atlanta arrested him as he attempted to enter the country for misuse of a resident alien card.  It appears that SR (Applicant) attempted to gain entry into the United States by illegally using the resident alien card of a family member.
A U.S. criminal investigation of SR (Applicant's) enlistment in the U.S. Navy was initiated at the request of the INS.  As a result of a joint investigation conducted by the Naval Criminal Investigative Service and the INS, numerous additional discrepancies and/or false statements regarding SR (Applicant's) enlistment were uncovered and noted.  The additional discrepancies noted in these investigations are simply to numerous to list.
It is my belief that based on SR (Applicant's) fraudulent enlistment he lacks the honesty and integrity required to be a dependable and productive member of the U.S. Navy and, accordingly, has no potential for further service.  In fact SR (Applicant) has been in an unauthorized absence status since 2 April 1999.

990409:	Commander, Navy Region, Mid-Atlantic authorized Commanding Officer, Naval Station, Norfolk, VA to proceed with administrative discharge as deemed appropriate.

990414:	From UA, surrendered 0800.

990428:	CNPC message:  Member was discharged in absentia while in a UA status with a general discharge.  Per MPM 1910-230, awarding a general discharge while member in UA status is inappropriate.  Processing should have been held in abeyance until member's return or until UA went beyond 30 days.  UA in excess of 30 days is a serious offense and reprocessing for an OTH is appropriate.
Also, DD 214 indicates SPD code of HDA which is for ADSEP BD entitled/waived.  Issue DD 215 with correct SPD of JDA.

990430:          Commanding Officer, Naval Station Norfolk directed discharge under 
honorable conditions (general) by reason of fraudulent entry into military service. [Corrected copy.]

010125:	NDRB documentary record review Docket Number ND00-00873 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged, in absentia, on 990414 under honorable conditions (general) 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).

Issues 1 and 2.  The Applicant stated on the Standard Form 86 (SF 86) completed at the time of his enlistment that he had never used another name, that he had not traveled outside the United States in the seven years prior to January 23, 1998, and that he had never been married.  The Applicant’s DD Form 1966 also implies that the Applicant was not married.  Based on the testimony and documentation presented by the Applicant at the hearing before this Board, and upon information contained in the service record, the Board believes that the information reported above on the SF 86 is false.  Any false information reported on either of these forms is considered fraudulent and becomes grounds for administrative separation under honorable (general) or other than honorable conditions.  This is true even if the Applicant truthfully reports information requested on other forms during his enlistment.  The testimony and documentation provided by the Applicant failed to refute the above basis for the Applicant’s separation for fraudulent enlistment.  The Applicant’s failure to read and/or correctly fill out forms required for his enlistment in 1998 does not invalidate his administrative separation.  In addition, despite the documentation provided by the Applicant, the Board found no indication that the Applicant was inequitably or improperly denied discharge for medical reasons or that the command’s failure to seek a waiver for the Applicant’s fraud was inequitable.  The narrative reason of fraudulent entry into military service and corresponding separation code of “JDA” (involuntary discharge, with no administrative board entitlement), as corrected by the DD Form 215 issued on 27 May 1999, most clearly describes the circumstances surrounding the Applicant’s processing for administrative separation.  The discharge was both proper and equitable.  Relief is therefore denied.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 Dec 97 until 2 Feb 01, Article 1910-134 (previously 3630100), Separation by Reason of Defective Enlistments and Inductions – Fraudulent Entry Into the 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 "afls14.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:  A0600/A9241/A9309