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NAVY | DRB | 1999_Navy | ND99-00220
Original file (ND99-00220.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND99-00220

Applicant’s Request
The application for discharge review, received 981125, requested that the characterization of service on the discharge be changed to general/under honorable conditions, however Disabled American Veterans requested to upgrade discharge to honorable. The applicant requested a documentary record discharge review. The applicant listed the Disabled American Veterans as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 991012. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety but did discern inequity in the characterization of the applicant’s service. The Board’s vote was unanimous that the character of the discharge shall change. The discharge will be: (GENERAL) UNDER HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

 I RESPECTFULLY REQUEST A CLEMENCY UPGRADE OF MY OTHER THAN HONORABLE DISCHARGE TO A GENERAL UNDER HONORABLE CONDITIONS.

I AM MAKI.NG EVERY EFFORT POSSIBLE TO BE THE PERSON THE NAVY EXPECTED ME TO BE UP0N MY ENLISTMENT. I KNOW THAT MY CONDUCT IN THE SERVICE WAS UNACCEPTABLE AND I AM THANKFUL FOR THE FIRM WAY THE NAVY DEALT WI TH ME.

A CLEMENCY UPGRADE TO GENERAL UNDER-HONORABLE WILL REMOVE THE STIGMA FOR MY PAST CONDUCT AND MORE ACCURATELY REFLECT THE HONORABLE CONDUCT I NOW MANIFEST.
After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, we continue to support the issues as raised by the FSM.

The FSM was released from the US Navy after 10 months of active service. The FSM was given an Other Than Honorable (OTH) discharge after the military discovered that the FSM fraudulently enlisted into the naval service (Article 83) and falsified official documents (Article 107). On May 28, 1992, the FSM was granted a waiver for failing to disclose information pertaining to preservice civil drug involvement and fraudulently enlisting into active service and was retained in the US Navy.

The FSM does not contest the way in which he was dealt with by the Navy. As a matter of fact, he is thankful for the firm way in which the Navy dealt with him. However, since his discharge, the FSM has worked extremely hard to become an asset to society. The FSM has a crime free record, remains an employee of good standing at Veeder-Root since 1994, and has maintained a grade point average above 3.5 at Penn State Altoona since 1995. The FSM was even included on the Dean's list in the fall of 1997. Also included are numerous lay statements from family, friends, teachers and co-workers which shows the dedication and motivation in which the FSM pursues his goals.

Based upon the FSM's immaculate post-service record, we contend the FSM has paid for his mistakes and he should have a chance to make the most of his life. We are requesting the FSM's discharge be upgraded to Honorable.

We ask for the boards careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the applicant.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of criminal record check dated July 15, 1998
Job/character reference dated July 15, 1998
Character reference dated July 22, 1998
Character reference dated January 6, 1998
Copy of college degree audit report dated August 7, 1998
Character reference dated July 27, 1998
Character reference, undated
Letter from Pastor of Claysburg Bible Church
Character reference dated July 16, 1998
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     911029 - 920526  COG

 Period of Service Under Review :
Date of Enlistment: 920527               Date of Discharge: 930331

 Length of Service (years, months, days):

         Active: 00 10 05
         Inactive: None

 Age at Entry: 21                          Years Contracted: 4

 Education Level: 12                        AFQT: 74

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.00 (1)    Behavior: 2.00 (1)                OTA: 2.00

 Military Decorations: None

 Unit/Campaign/Service Awards: None

Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

 Chronological Listing of Significant Service Events :

920528:  Retention Warning: Advised of deficiency (Minor in possession of alcohol and possession of THC, 10/90, Bethel Park PA, dismissed.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 930205:  NJP for violation of UCMJ, Article 83: Fraudulent enlistment by means of knowingly false representations that he had not used illicit drugs when in fact he used marijuana for approximately 5 years, opium and cocaine from 1988-1989, LSD from 1987-1990 and did procure himself to be enlisted as an E-1 in the USN and did thereafter receive pay and allowance under the enlistment so procured on or about 91Oct29, violation of UCMJ Article 107 (2 specs): (1) With intent to deceive sign an official record to wit: DD Form 398, personnel security questionnaire which record was false in that he used marijuana for approximately 5 years, opium and cocaine from 1988-1989, LSD from 1987-1990 and was then known by SR to be so false on or about 92Apr16, (2) With intent to deceive make to DIS, an official statement to wit: DIS Form 23A which statement was false in that he admitted only to use of marijuana and was then known by SR to be false on or about 92Sep22.
         Award: Forfeiture of $407 per month for 2 months, restriction and extra duty for 45 days, reduction to SR. No indication of appeal in the record.
930208:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.
930210:          Applicant advised of his 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.
930219:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

930316:  BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT
REGULATION/LAW

Discussion

The applicant was discharged on 930331 under other than honorable conditions for misconduct due to commission of a serious offense (A and B). The Board presumed regularity in the conduct of governmental affairs (C). After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper but not equitable (D and E).

In response to applicant’s issue 1, the Board, after reviewing the applicant’s service record and supporting documentation, has decided to grant relief in this case due to the applicant having no other misconduct other than his fraudulent enlistment and also due to the applicant’s excellent post-service record.

Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 5, effective
05 Mar 93 until 21 Jul 94, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

 B. Under the Manual for Courts-Martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 83, for fraudulent enlistment, if adjudged at a Special or General Court-Martial.

 C. 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.

D. 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.

E. 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 obtain a copy of DoD Directive 1332.28 by writing to:
                  DA Military Review Boards Agency
                  Management Information and Support Directorate
                  Armed Forces Reading Room
                  Washington, D.C. 20310-1809

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
                  Washington Navy Yard
                  720 Kennon Street SE Rm 309
                  Washington, D.C. 20374-5023     


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