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

FOR OFFICIAL USE ONLY

 ex-AZ2, USN
Docket No. ND06-00308

Applicant’s Request

The application for discharge review was received on 20051213. The Applicant requests the Discharge 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 20061102.  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 General (Under Honorable Conditions) by reason of defective enlistment and induction due to fraudulent entry.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“My discharge was inequitable because it was based on “fraudulent Entry into military” when I was told by my recruiter to lie about my criminal record (which is clean now). I believe I was an outstanding sailor. My evals can prove that. I respectfully request an upgrade to honorable because I desperately need it in order to use my MGIB which I invested into.”

Documentation

Only the service record was reviewed.  The Applicant did not provide additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	19990726 - 19990916	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  19990917		Date of Discharge:  20030311

Length of Service (years, months, days):

	Active:    03 05 25
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  20

Years Contracted:  4 

Education Level:  12				AFQT:  42

Highest Rate:  AZ2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.0 (2) 		Behavior:  2.5 (2) 			OTA:  3.4

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Navy “E” Ribbon, Sea Service Deployment Ribbon, Armed Forces Expeditionary Medal, National Defense Service Medal, Meritorious Unit Commendation Medal, Navy Unit Commendation Medal

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

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

Chronological Listing of Significant Service Events: 

  990722:	Application for Enlistment (DD Form 1966): Applicant failed to disclose [pre-service criminal activities, police record, etc.].

990917:	Date Applicant entered Active Duty

000729:	Retention Warning: Advised of deficiency (Violation of Article 86 & 91:  Unauthorized Absence and Disrespect to a Petty Officer.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

020305:	Letter from Commander, Navy Personnel Command to Commanding Officer, Helicopter Anti-Submarine Squadron THREE, dated 020305.
Subject:  Fraudulent Enlistment:  Document list dates and charges prior to 
Applicant’s Enlistment.

020626:	MSG from CNPC to HELANTISUBRON THREE requesting investigate and initiate ADSEP processing or request waiver of ADSEP processing from GCMCA or CNPC.

021023:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of Alcohol Abuse Rehabilitation Failure, Defective Enlistments and induction and Fraudulent Entry into the Naval Service.

021023:	Applicant advised of rights and elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

021112	CNPC sends a message to HELANTISUBRON THREE requesting investigation and to initiate ADSEP processing or request waiver of ADSEP processing from GCMCA or CNPC.

030108:	Commanding Officer, Helicopter Antisubmarine Squadron, THREE, recommended to Commander, Navy, Personnel Command, that the Applicant be discharged with a general (under honorable conditions) by reason of defective enlistment and inductions — fraudulent entry into the Naval Service. Commanding Officer’s comments: “Petty Officer N_ (Applicant) has performed admirably while attached to my command. When I first learned of his Fraudulent Enlistment case March 2002, we immediately began processing him for a waiver.
On the basis of Fraudulent Enlistment, his waiver request could not be completed due to four outstanding warrants in Ohio. Petty Officer N_ (Applicant) has stated that these warrants have since been dropped, but has not produced any documentation to that effect. Petty Officer N_ (Applicant) is now incarcerated at Clay County Jail in Jacksonville, Florida awaiting trial for violation of his parole on a felony conviction, and is not anticipated to conclude his obligations with civilian authorities for some time. He is not eligible for bond due to his extensive record.
Overall, Petty Officer N (Applicant) is an outstanding Sailor. However, I believe that these significant negative aspects of his conduct while on liberty outweigh the positive aspects of his service. Consequentially, I am separating him with the characterization of General, Under Honorable Conditions.”

030108: 	Civil Convictions prior to enlistment per Commanding Officers letter, dtd
030108.  Involvement with civilian authorities: Ohio State Highway Patrol: cited for speeding 970811; cited for speeding 980122; cited for reckless operation and Hit-Skip/Leaving Scene of accident 980528. Hamilton County (Ohio) Sheriff’s Office: Warrant issued for Assault 990803; Two warrants issued for Probation Violations 990720; Capias issued 990809 for Other Operator Violation; Cited 990411 by Green Township (Ohio) Police for Disorderly Conduct; Arrested 980712 by Blue Ash, OH Police for Disorderly Conduct and Resisting Arrest; Cited 980713 by Deer Park, OH Police for Possession of Open Flask (dismissed); Arrested 980613 for DUI; Arrested 980517 for Disorderly Conduct, fined $25.00; Arrested 980517 for assault, fined $1000 and placed on three years probation. A complete record of civil offenses prior to entering military service is contained as enclosure (3). [extracted from C.O. HELANTISUBRON THREE].

030311	DD FORM 214 Applicant Discharged: General (Under Honorable 
                        Conditions) Fraudulent Entry into Military.  

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030311 by reason of defective enlistment and induction due to fraudulent entry (A) with a service characterization of general (under honorable conditions).  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 (B and C).  The Board presumed regularity in the conduct of governmental affairs (D).

The Applicant claims he was an outstanding Sailor with good evaluations.  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.  A general 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 multiple undisclosed civil convictions prior to entry into Military service.  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 is not warranted.

The Applicant states “I was told by my recruiter to lie about my criminal record (which is clean now).”   The Applicant bears the burden of overcoming the government’s presumption of regularity through the presentation of substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that the recruiter misled him through the recruitment process.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  Relief denied.  

The Applicant is requesting an upgrade in order to use the G.I. Bill.  The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the 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 additional evidence related to this discharge.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 02 until Present, 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 5420.174D 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.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.

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