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

FOR OFFICIAL USE ONLY

ex-EM1, USN
Docket No. ND05-00984

Applicant’s Request

The application for discharge review was received on 20050524.  The Applicant requests his characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D. C. on 20051006.  After a thorough review of all available records, supporting documents, facts, and circumstances unique to the case an inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the characterization of service shall change to HONORABLE; and 4 to 1 that the narrative reason for discharge shall remain FRAUDULENT ENTRY, authority: MILPERSMAN Article 3630100, Separation Code “GDA”

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application: 

“I was employed as an electrical engineer in manila when I was recruited in the U.S. Navy.  I passed all the requirements except that:  At that time I was already married (the U.S. Navy recruiter in the former Subic Naval Base only accepts unmarried recruits).  It was a dream come true for me to serve the U.S. Navy and the U.S. Government that is why I was tempted to lie.  On Nov 1991, I faced a three men panel concerned about my “Fraudulent Entry in the U.S. Navy and I was awarded general discharge under honorable conditions”.  I’m appealing to you this case be it is already 13 years ago and it still haunts me.  May I request a peace of mind, I’m very sorry that I had to lie to serve”.

Documentation

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

Applicant’s DD Form 214
Letter from Applicant dtd June 11, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive: None
	Active:   USN 			19820308 – 19880306		HON

Period of Service Under Review:

Date of Enlistment:  19880307		Date of Discharge:  19920122

Length of Service (years, months, days):

	Active:    03 10 16  		(Total Active Service:  09 10 14)
	Inactive:  None

Time Lost During This Period:

	Unauthorized absence:  none
	Confinement:		  none

Age at Entry:  29

Years Contracted:  4 

Education Level:  16				AFQT:  56

Highest Rate:  EM1

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.9 (5) 	Behavior:  3.9 (5) 	OTA:  3.9 (5)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Navy ”E” Ribbon (w/3 Bronze stars), Meritorious Unit Commendation, Sea Service Deployment Ribbon (w/3 Bronze stars), Second Good Conduct Award, Navy and Marine Corps Overseas Service Ribbon (w/2 Bronze stars), National Defense Service Medal, .38 CAL Pistol Sharp Shooter, Letter of Commendation

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

UNDER HONORABLE CONDITIONS (GENERAL)/Fraudulent entry, authority:  MILPERSMAN, Article 3630100.

Chronological Listing of Significant Service Events: 

880307:	Reenlisted this date for a term of 4 years.

890416:	Advanced to EM1.

9003XX:	Awarded Second Good Conduct Medal.

910522:	Message from COMUSFAC, Subic Bay to BUPERS.  References letter from attorney P____, dated 13 May 1991, which provided information that member, was married and had one child born prior to enlistment.

910625:	Message from BUPERS to COMUSFAC, Subic Bay.  Indicating fraudulent enlistment, request initiation of ADSEP procedures by reason on defective enlistment and induction due to fraudulent entry into naval service, use admin board procedures.  Processing is mandatory, discharge is not, final decision will be made by BUPERS with strong consideration of the Commanding Officer’s recommendation.

910822:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of defective enlistment and induction due to fraudulent entry into the military service as evidenced by your failing to reveal that you were married and had one child born prior to enlistment.

910823:	Applicant advised of rights and having consulted with counsel, objected to separation and elected to appear before an Administrative Discharge Board.

911010:	An Administrative Discharge Board, based upon preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct by reason of defective enlistment and induction due to fraudulent entry into the naval service, that such misconduct warranted separation, and recommended a general under honorable conditions discharge.

911021:	Letter of deficiency, from Lt H___, defense counsel.  When senior member was asked about the basis for recommendation he responded.  EM1 Ibe did not apologize sufficiently; furthermore the board’s decision would not have been effected by any amount of praise or recommendation for retention.    

911023:	Commanding Officer, Staff Enlisted Personnel, U.S. Facility, Subic Bay, recommended discharge with a under honorable conditions (general) by reason of defective enlistment and induction due to fraudulent entry into the military service.  Commanding Officer’s comments: “The Administrative Discharge Board heard the merits of the subject administrative action and recommended separation with a General Discharge.  The Board was conducted appropriately and there is nothing warranting nonconcurrence with the Board’s recommendation.  Therefore, I strongly recommend EM1 I_ be separated from the Naval Service and that his characterization of service be General under honorable conditions”.

911130:	Evaluation states, “…failure to support spouse, and most recently, serious merchandise control violations”.

911206:	Message from COMSUSFAC Subic Bay to BUPERS.  “Other circumstances that prompt the Commanding Officer’s gen discharge recommendation is that for the past eighteen months or so, Petty Officer Ibe and his family have become and administrative burden.  Since their separation he has to be prompted to provide monthly financial support.  Even after depns were evacuate to conus in June, he had to have extensive counseling threaten NJP and admin separation procedures.  In addition, Petty Officer Ibe has been involved in violation of travel restrictions and merchandise control violations.  He is under investigation for selling control merchandize items at this time.
	The gen discharge recommendation took into consideration his length of service, good conduct and performance record.  However, his frequent involvement with non-support of spouse and other minor offenses warrant the discharge.  In view of the above, it is felt that Petty Officer Ibe can serve no further usefulness to the navy and it is again recommended that he be discharged”.  

911219:	BUPERS directed the Applicant's discharge with a under honorable conditions (general) by reason of defective enlistments and inductions due to fraudulent entry into the military service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19920122 by reason of defective enlistment and induction due to fraudulent entry (A) with a service characterization of under honorable conditions (general).  After a thorough review of all available records, supporting documents, facts, and circumstances unique to this case, the Board discerned no impropriety in the discharge action but did discern an inequity in the characterization of the Applicant’s service (B and C).  The Board’s vote was unanimous that the characterization of the discharge shall change and by a vote 4 to 1 that the narrative reason for discharge shall not change.  The characterization of service shall change to:  Honorable.  

The Applicant contends his characterization of service at discharge was inequitable.  A general discharge may be warranted following nonjudicial punishment (NJP) or other disciplinary action.  A general discharge is also warranted if significant negative aspects of the member’s conduct outweigh the positive aspects of the member’s service or if performance evaluation averages are not sufficient to merit an honorable discharge.  In the Applicant’s case, the record contains no evidence of NJP, or other disciplinary action, and no formal counseling for substandard performance.  The incidents of uncharged misconduct referenced in the Commanding Officer’s message of December 06, 1991 were considered insufficient basis by the Board, upon which to award a General Discharge in view of Applicant’s many years of honorable service.  Furthermore, the Applicant’s performance evaluation averages support a characterization of honorable.  The administrative action of processing for fraudulent entry, which the Applicant never denied, was proper.  However, based upon the Applicant’s service record, the Board unanimously agreed that the Applicant’s characterization of service was inequitable and recharacterization to honorable is warranted.  Relief granted.

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 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

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