Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: janet.goode
Company: NCPB

Docket No. ND07-00343

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

ex-AD1, USN
ND07-00343

Current Discharge and Applicant’s Request

Application Received:  20070119 	 Characterization Received:  UNDER HONORABLE CONDITIONS (GENERAL)
Narrative Reason:  FRAUDULENT ENTRY 				          Authority:  MILPERSMAN 3630100

Applicant’s Request:	Characterization change to:  HONORABLE
			Narrative Reason change to: ERRONEOUS ENLISTMENT
Applicant’s Issues:	1. Characterization not warranted by overall service record

Decision

By a vote of 5-0 the Characterization shall remain UNDER HONORABLE CONDITIONS (GENERAL).
By a vote of 5-0 the Narrative Reason shall remain FRAUDULENT ENTRY.

Date:  20071101	DOCUMENTARY REVIEW	Location:  Washington D.C.	Representative:  Disabled American Veterans

Discussion

Issue 1 (Propriety/Equity).  The record demonstrates that the Applicant’s enlistment was fraudulent.  The Board found no reason to change the reason for discharge.  Characterization as under honorable conditions (general) is appropriate when service has been honest and faithful, but significant negative aspects of conduct or performance of duty outweigh the positive aspects of the member’s military record.  The Board noted the Applicant’s excellent record of performance during the period of service under review.  However, the Applicant’s opportunity to serve was procured by fraud, and he repeated it in his 1991 PSQ.  The Separation Authority’s determination was within her discretion, supported by the evidence, and not improper or inequitable.

Issue 2: (Propriety).  The Board identified a possible issue concerning the Applicant’s end of active service (EAS).  He entered active duty on 19860618 for 6 years, making his EAS 19920617.  His service record contains two extension documents for an aggregate of 9 months extension of EAS to 19930317.  The Applicant was not discharged until 19930616, so the Board reviewed the record to determine whether he had been improperly held beyond EAS for administrative separation.  The Board found that the Applicant’s History of Assignments page indicated an extension on 19920917 for an unspecified period of time, and that the Applicant’s Commanding Officer indicated an EAS of 19930617 in the recommendation for retention.  The Applicant did not raise this issue to his discharge board, nor to this Board in his petition for review.  The Board found that the the available evidence supported the conclusion that the Applicant was properly on active duty until the date of his discharge.

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that the discharge was proper and equitable.

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	19750418 - 19751028  COG	Active:	 USN		19751029 - 19791120  HON
	USNR-R	19831220 - 19860617  HON	 	 USN		19791121 - 19831120  HON
	
Period of Service Under Review:
Date of Enlistment: 19860618	Years Contracted:  6; Extension:  9 MONTHS   	Date of Discharge:  19930616
Length of Service:  06  Yrs  11  Mths  29  Dys		Lost Time:  Days UA:  NONE  Days Confined:  NONE
Education Level:  GED		Age at Enlistment:  28		AFQT:  84		Highest Rank/Rate:  AD1
Evaluation marks (# of occasions):	Performance:  4.0(7)	Behavior:  3.9(7)		 OTA:  4.00 	(4.0 scale)
Awards and Decorations (per DD 214):  SSDR (5TH), PISTOL SHOT RIBBON, MUC, NDSM, NAVY "E" RIBBON, GCM, CG SPECIAL OPERATIONS RIBBON, NAVY AIRCREW BADGE

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

19860303:	Applicant certified no drug abuse on Alcohol and Drug Abuse Screening Certificate.

19860305:	Applicant denied marijuana use on SF-93.

19860618:	Applicant re-certified accuracy of Alcohol and Drug Abuse Screening Certificate.

19860625:	COMNAVMILPERSCOM authorized Applicant for re-enlistment bonus.

19891030:	Applicant extended enlistment for 6 months (6 months aggregate).

19891109:	Applicant extended enlistment for 3 months (9 months aggregate).

19910527:	Applicant completed DoD Personnel Security Questionnaire (PSQ) denying arrests, debt and drug abuse.

19911118:	Applicant submitted statement admitting to: falsely denying any arrests, debt, or drug abuse on his PSQ of 19910527; being arrested for domestic violence in 199103xx; being arrested during a traffic stop in Kingsville, TX in 1975; marijuana use from 1973 – 1982; urinalysis failure for marijuana use in 1982; amphetamine use and sale from 1973 - 1985; cocaine use and sale from 1975 – 1985; heroin use and sale from 1973 – 1985; LSD use from 1973 – 1975; last use of marijuana in 1987; and irresponsibly incurred and unpaid credit card debt from 1983 to present.  Applicant denied having more than 1 bag of marijuana in 1976 when his room was searched by NCIS, and denied having 27 bags for sale as indicated by a cooperating witness. 

19920107:	Applicant submitted statement to clarify prior statement of 19911118 admitting to: marijuana use from 1973 – 1985, and knowingly and intentionally falsely denying drug use on his Alcohol and Drug Abuse Screening Certificate on 199860303.

19920225:	Applicant voluntarily submitted to polygraph and submitted statement admitting to:  heroin use in 1986 one week prior to re-enlistment; possession of 23 1-oz bags of marijuana for use and/or distribution at time of 1976 Kingsville, TX apprehension by NCIS; receipt from brother in 1989 of a bag of marijuana which he returned without using; discovery in 1991 of bag of marijuana while working as a security guard which he turned in to his employer; pre-service theft of an exercise bike and microwave oven from a furniture store which he used and subsequently sold or gave away; and theft, as a youth, of a Triumph Spitfire which he abandoned in the desert after a joyride.

19920917:	Applicant extended enlistment (period not indicated in record).
	[Extracted from History of Assignments]

19921022:	Applicant completed DoD National Agency Questionnaire acknowledging arrest record, outstanding debt and drug use.

19920513:	Department of the Navy Central Adjudication Facility (DONCAF) advised Applicant of intent to revoke security clearance.

Undated:	Applicant submitted response to DONCAF.

19920828:	DONCAF granted Applicant secret clearance.

19920917:	CO, Patrol Squadron 31 recommended retention waiver for Applicant’s continued service.

19921102:	BUPERS directed that Applicant be processed for administrative discharge on the basis of fraudulent entry.

Discharge Process

Date Notified:					19921209
Reason for Discharge:  	DEFECTIVE ENLISTMENT AND INDUCTION - FRAUDULENT ENTRY INTO NAVAL SERVICE
Least Favorable Characterization:	UNDER OTHER THAN HONORABLE CONDITIONS

Date Applicant Responded to Notification:		19921209
Rights Elected at Notification:
	Consult with Counsel			ELECTED
	Obtain Copies of Documents		ELECTED
	Submit Statement(s) (date)			ELECTED 
	Administrative Board			ELECTED

Administrative Board Date:	19930125
              Findings, by preponderance of the evidence:	BY 3-0 VOTE, DEFECTIVE ENLISTMENT AND INDUCTION - FRAUDULENT ENTRY INTO NAVAL SERVICE SUPPORTED.
             Recommendation on Separation: 	BY 2-1 VOTE, RETAIN

Commanding Officer Recommendation (date):	RETENTION (19930202)
Chief of Naval Personnel Recommendation (date)	UNDER HONORABLE CONDITIONS (GENERAL) (19930312)
Separation Authority (date):	ASSISTANT SECRETARY OF THE NAVY (M&RA) (19930319)
              Reason for discharge directed:	DEFECTIVE ENLISTMENT AND INDUCTION - FRAUDULENT ENTRY INTO NAVAL SERVICE
              Characterization directed:	UNDER HONORABLE CONDITIONS (GENERAL)
Date Applicant Discharged:	19930616

Types of Documents Submitted by Applicant and Considered By Board

Related to Military Service:	Service and/or Medical Record:  ☒		Other Records:  ☐

Related to Post-Service Period:  	
	Employment:  		☐	Finances:  		☐	Education: 		☐
	Health/Medical Records:  	☐	Substance Abuse:		☐	Criminal Records:  	☐
	Family/Personal Status: 	☐	Community Service:  	☐	References:  		☐
	
Additional Statements From Applicant:  ☐	From Representative:  ☒  		Other Documentation (Describe) ☐

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 7/86, effective 16 December 1986 until 19 December 1993, 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 II, Para 211, Regularity of Government Affairs, Part V, Para 502, Propriety and Para 503, Equity.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC  20301-4000.  You should read Enclosure (5) of the Instruction 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 Instruction 1332.28 and other Decisional Documents by going online at “http://Boards.law.af.mil.”

Additional Reviews:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the 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.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  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.

Employment/Educational Opportunities:  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 of the propriety and equity of the discharge.  

Reenlistment/RE-code:  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.

Medical Conditions and Misconduct:  DoD disability regulations do not preclude a disciplinary separation.  Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons.  Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record.  Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or “PTSD.”  Only the Board for Correction of Naval Records can grant this type of narrative reason change.  

Automatic Upgrades - 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 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.  Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  

Issues Concerning Bad-Conduct Discharges (BCD) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief.  With respect to a discharge adjudged by a court-martial, the action of the NDRB is restricted to upgrades based on clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  

Board Membership:  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