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

ex-RMSR, USN
Docket No. ND04-00383

Applicant’s Request

The application for discharge review, received 20040105, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions or entry level separation or uncharacterized.  The Applicant requested a documentary record review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20040910.  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:  UNDER OTHER THAN HONORABLE CONDITIONS/Fraudulent entry, authority: NAVMILPERSMAN, Article 3630100.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “The discharge is improper for the following reason:  the applicant voluntarily admitted to preservice drug usage and was thus issued a waiver, yet the basis for the applicant’s discharge was his preservice drug usage.

The discharge was inequitable because it was based on one preservice event that was waived, and with over 8 months of service the applicant had no other adverse actions.

Yet, the applicant was discharged with an Other than Honorable discharge which in itself is both improper and inequitable for several reasons:  1) the applicant disclosed of his preservice drug abuse voluntarily, and thus was issued a waiver, 2) the applicant had no further documented adverse actions in the military whatsoever, and 3) an Other than Honorable discharge is given to sailors that were caught using illicit drugs, but the applicant was not caught using drugs, he had never failed an urinalysis while in the Navy.  His experience with drugs was before he had entered into the Navy.

Hence, the applicant request an ‘Entry Level Separation’ based on the following facts: 1) the applicant was issued a waiver 6 days after the applicant initial enlistment date, and 4 days before he read and signed the Navy’s Drug and Alcohol Abuse Statement, and 2) the applicant had no other adverse actions on record warranting a discharge, and therefore the applicant should have been allowed to remain in the Navy, but since he was not he requests an Entry Level Separation!  And finally, the applicant recently completed Officer Candidate School in the United States Army National Guard and wish very much to have his discharge upgraded, so he can hold an officer commission, a necessary requisite for the Army National Guard and Uniformed Services University Medical School.  A school the applicant plans on applying to during the summer of 2004.”

Documentation

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

Enlistment/Re-enlistment document, DD Form 4/1
Retention warning, dated 920820 (2)
Officer Candidate School Diploma, dated September 27, 2003
Naval Drug Abuse statement, dated August 24, 1992
Applicant’s DD Form 214
Request of moral waiver, dated June 2, 2004
MILPERSMAN 3630100
Administrative remarks from Applicant’s service record, dated May 14, 1993
Request moral waiver for initial appointment, dated May 11, 2004
Developmental counseling form, dated May 31, 2003 (2 pages)
Physical fitness award
Letter to Applicant from Kansas State University, dated July 23, 2002
Certificate from The University of Kansas, Black Faculty & Staff Council, dated April 3, 1999
Certificate of participation, dated July 30, 1999
Invitation to Dean’s Honor Tea and list of invitees

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	920814 - 920818	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  920819			Date of Discharge:  930513

Length of Service (years, months, days):

	Active:    00  08  25
	Inactive:  None

Age at Entry:  17 (Parental Consent)		Years Contracted:  4

Education Level:  12				AFQT:  71

Highest Rate:  RMSR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.40 (1)			Behavior:  3.60 (1)		OTA:  3.40

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Fraudulent entry, authority:  NAVMILPERSMAN, Article 3630100.

Chronological Listing of Significant Service Events:

920820:	You are being retained in the Naval service, despite your defective enlistment and induction due to fraudulent entry into naval service as evidenced by your failure to disclose your pre-service civil involvement/drug abuse.  THC (not in DEP) More than 30 days ago.  This decision is based on the information you provided the Recruit Quality Assurance Interviewer and if it is found that additional information has not been disclosed, this waiver is void and you could be subject to other judicial or administrative proceedings.  However, any further deficiencies in performance or conduct may result in processing for administrative separation.

920824:	Applicant briefed on Navy's policy of drug and alcohol abuse.

920910:	Personnel Security Questionnaire (DD Form 298):  Applicant marked no to Block 22b.

921117:	Applicant’s statement admitting to knowingly and intentionally falsifying PSQ (Personnel Security Questionnaire) signed and dated 920910, to avoid jeopardizing Navy enlistment and training opportunities.

930112:	Applicant’s statement admitting to falsifying signed sworn statement to DIS on 921117 by concealing the full extent of his drug involvement.  Applicant was a self-employed drug dealer (rock cocaine).

930329:	Applicant notified of intended recommendation for discharge with an under other than honorable conditions by reason of defective enlistment and induction due to fraudulent entry as evidenced by your service record.

930329:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

930414:	Commanding Officer recommended discharge with an under other than honorable conditions by reason of defective enlistment and induction due to fraudulent entry.

930505:	BUPERS directed the Applicant's discharge with an under other than honorable conditions 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 19930513 with an under other than honorable conditions 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:  Normally, to permit relief, an impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no such impropriety or inequity after a review of Applicant’s case.  Applicable regulations in effect when Applicant was discharged permit the separation of a member under other than honorable conditions for having entered the naval service fraudulently through knowingly false representations or deliberate concealment of any of the qualifications or disqualifications prescribed for entry.  On 20 Aug 1992, Applicant was issued a NAVPERS 1070/613 retention warning detailing his defective enlistment due to fraudulent entry by failing to disclose pre-service drug abuse, THC use.  The retention warning informed Applicant he was being retained in the Naval service, however, if the information Applicant provided concerning his pre-service drug use was not factual, the retention warning would be void and Applicant would be subject to other judicial or administrative proceedings.  In a sworn statement on 12 Jan 1993, Applicant admitted to further deceptions about the extent of his involvement in the pre-service misconduct, including acting as a dealer of “crack” cocaine.

Applicant contends his discharge was improper and inequitable because he contends that it was based upon pre-service misconduct.  Notwithstanding his claims, Applicant’s continued deceptions regarding his pre-service misconduct voided his retention warning and subjected him to administrative processing by reason of defective enlistment, fraudulent entry.  When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  An under other than honorable conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by repeated deceptions regarding his pre-service misconduct in violation of his retention warning.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.  Relief denied.

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 naval service.  The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge 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.  While Applicant has demonstrated to this Board that he has begun the process of rehabilitating his character, his post-service conduct is insufficient to mitigate the level of misconduct.  Relief denied.

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 his 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