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Docket No. ND04-00152

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

ex-SA, USN
Docket No. ND04-00152

Applicant’s Request

The application for discharge review, received 20031029, 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 did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040715.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  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, as stated

Applicant’s issues, as stated on the application:

“I was 18 years old when I received this discharge and was advised that this discharge can be changed to a general if I maintained a clean civil record.”
 
Documentation

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

Letter from Applicant dated October 21, 2003

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	900120 - 910106	COG
	Active:   USN 			None

Period of Service Under Review:

Date of Enlistment:  910107		Date of Discharge:  910211

Length of Service (years, months, days):

	Active:    00  01  05
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 

Education Level:  12			AFQT:  51

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NOB*		Behavior:  NOB		OTA:  NOB

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:

910131:	Applicant’s Voluntary Statement made to ENS M___ G. F___, concerning her homosexuality.

910201:	Applicant notified of intended recommendation by reason of defective enlistment and induction due to fraudulent enlistment into the naval service as evidenced failure to disclose pre-service homosexuality

910201:	Applicant advised of her 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.  Applicant waived the minimum two working days to respond to notification.

910205:	Commanding Officer, Recruit Training Command, Orlando directed applicant discharge with an entry level separation by reason of defective enlistment and induction due to fraudulent enlistment into the naval service as evidenced failure to disclose pre-service homosexuality.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19910211 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).

Issue 1.  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 the service.  The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that her discharge was appropriate and that his evidence of post-service conduct was found not to mitigate the conduct for which he was discharged.  Relief denied.

In the Applicant’s letter dated 23 October 2003, states she is “no longer gay” and that she was “terrified that I couldn’t get through the training.”  However, the Applicant’s service record contains a statement: “I’ve only had one relationship with my best friend of sex… I’m not only attracted to women but to men as well,” but did not indicate any homosexual tendencies on her pre-service questionnaires, thus substantiating the misconduct for which she was separated, fraudulent enlistment.  No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable.  Relief denied.

By regulation, members discharged within the first 180 days of enlistment are given characterization of service "Uncharacterized" unless there were unusual circumstances regarding performance or conduct, which would merit an "honorable" characterization.  Applicant's service record did not contain any unusual circumstances during her less than two months in the military to warrant a change of discharge to "honorable."  The Applicant should be aware that, with respect to nonservice-related administrative matters, i.e., VA benefits, educational pursuits, and especially civilian employment, an uncharacterized/Entry-level separation is considered the equivalent of an honorable or general (under honorable conditions) discharge.

The Applicant remains eligible for a personal appearance hearing, provided an 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 other evidence related to her discharge at that time.  Representation at a personal appearance hearing is recommended but not required.

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 "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.