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NAVY | DRB | 2000_Navy | ND00-00873
Original file (ND00-00873.rtf) Auto-classification: Denied


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

ex-SA, USN
Docket No. ND00-00873

Applicant’s Request
The application for discharge review, received 070600, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to Convenience of the Government. The applicant requested a personal appearance hearing in the Washington National Capital Region. The applicant listed the American Legion as the representative on the DD Form 293. In the acknowledgement letter to the applicant, the applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010125. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/FRAUDULENT ENTRY INTO MILITARY SERVICE, authority: NAVMILPERSMAN, Article 1910-134 (formerly 3630100). Discharged in absentia.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1 . (Equity issue) This former member avers that the primary reasons for his fraudulent entry discharge are incorrect. The first reason that he lied by claiming that he had never been arrested, charged or convicted of any criminal offense is incorrect because his enlistment papers clearly reflects that he did disclose his criminal charges. The second reason that he claimed on his enlistment papers that he was not married was an inadvertent mistake because he indicated on all the other documents in his service record that he was married. On this basis, he opines that upgrade of his character of service to full honorable and a narrative reason charge to convenience of the government is warranted.

2. (Equity issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.

Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214 (4 copies)
Copy of travel certificate dated April 12, 1999 (5 copies)
Character reference dated June 26, 2000
Two pages from applicant's medical record (4 copies)
Copy of page 1 of investigation dated February 18, 1999
Letter to Director of Immigration dated September 9, 1998
Copy of judgement of acquittal dated October 2, 1997 (3 copies)
Copy of transcript of docket dated September 14, 1993 (2 copies)
Copy of acknowledgement of receipt dated June 18, 1999
Partial copy of DD Form 293
Copy of Veterans Universal Access Identification card (3 copies)
Letter from congressional relations (2 copies)
Copy of Keystone Mercy Health Plan (2 copies)
Copy of Pennsylvania identification card (2 copies)
Copy of social security card (2 copies)
Copy of DD Form 1966/3 (3 copies)
Copy of administrative separation letter dated April 9, 1999 (2 copies)
Copy of administrative separation processing notice - notification procedure dated March 26, 1999 (4 copies)
Letter from Department of Veterans Affairs dated June 26, 2000 (2 copies)
Copy of Dependency Application/Record of Emergency Data (3 copies)
Copy of Standard Transfer Order dated October 8, 1998
Copy of certificate of live birth
Copy of record of marriage dated September 16, 1991
Copy of birth registration form dated May 23, 1988
Copy of special request/authorization dated March 11, 1999 (4 copies), March 8, 1999 (3 copies), and January 14, 1999 (3 copies)
Copy of letter from attorney re status of divorce case dated December 22, 1998
Copy of alien registration receipt card
Copy of national agency check security information dated January 12, 1998
Job reference dated January 11, 2000 (2 copies)
Copy of FICA earnings
Copy of a medical page
Copy of abbreviated limited duty medical board report
Copy of report of complaint (2 copies)
Copy of NCISRA EARLE operations report
Copy of request for verification of birth dated January 23, 1998
Copy of evaluation of foreign credentials dated September 2, 1993
Letter from applicant dated July 31, 2000
Copy of national agency check security information dated January 23, 1998
Letter from applicant dated October 9, 2000
Letter from Department of Veterans Affairs dated May 22, 2000 (2 copies)
Letter to applicant from Federal Bureau of Investigation dated September 19, 2000 (2 copies)
Letter to applicant re: FOIPA request (2 copies)
Copy of request of criminal record check dated December 22, 1995 (2 copies)
Statement of no criminal record from Dover Township Police Department dated June 18, 1992 (2 copies)
Copy of registration acknowledgement (2 copies)
Copy of limited duty reevaluation appointment dated December 24, 1998 (2 copies)
Copy of administrative remarks dated November 9, 1998 (2 copies)
Copy of History of Assignment (4 copies)
Copy of Transient check-in sheet (2 copies)
Fifteen pages from applicant's service record
Copy of declaration of status of dependents dated August 4, 1999
Copy of education evaluation request

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     980123 - 980128  COG

 Period of Service Under Review :
Date of Enlistment: 980129               Date of Discharge: 990414

 Length of Service (years, months, days):

         Active: 01 02 16
         Inactive: None

 Age at Entry: 31                          Years Contracted: 4

 Education Level: 12                        AFQT: 38

 Highest Rate: SA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF                  Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: None

Days of Unauthorized Absence: 12

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

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

 Chronological Listing of Significant Service Events :

990329:  Applicant notified of intended recommendation for discharge with a general (under honorable conditions) by reason of defective enlistment and induction due to fraudulent entry.
990329:  Applicant advised of his rights and having consulted 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.

990402:  Applicant to unauthorized absence 1030, 2Apr99.

990407:  Commanding officer recommended discharge with a general (under honorable conditions) by reason of defective enlistment and induction due to fraudulent entry. Commanding officer comments (verbatim): Based on a preponderance of the evidence reviewed, I determined that SR (applicant) fraudulently enlisted into the United States Naval Service on 23 January 1998. SR (applicant) provided false and misleading information during the enlistment process. The decision to enlist SR (applicant) into the U.S. Navy was based, in part, on his misrepresentation of material facts and information. Given the scope and gravity of the misinformation he provided, his command and subsequently the Navy has lost confidence and trust in his ability to honestly and faithfully serve. Accordingly, his enlistment has been deemed fraudulent.
         When SR (applicant) enlisted in January 1998, he was directed to complete a Form 1966 and SF 86. These forms were completed during the enlistment process and used to assess his potential for service. Unfortunately, SR (applicant) chose not to complete these forms truthfully. Both are filled with false or falsified and misleading information. For example, when completing the Record of Military Processing paper work DD Form 1966, SR (applicant) claimed to be single with two dependents and that he had never married when in fact both of these entries were false. SR (applicant) married a U.S. Citizen in September 1991 and has remained married since then. Additionally, when completing the National Agency Security Information Form SF 86, SR (applicant) claimed he had never used or been known by any other name of alias. This statement, again was false. Based on the evidence reviewed, SR (applicant) has, on numerous occasions involving interaction with law enforcement and Immigration Naturalization Service (INS) officials, utilized the alias F_ A_ M_ and K_ E_ W_. Furthermore, SR (applicant) claimed on his SF 86 that he had not traveled outside of the U.S. in the last seven years. Yet, on his naturalization application he clearly indicates that he traveled to Jamaica to visit relatives from November 1994 to February 1995.
         SR (applicant's) web of deception continued when he provided information to the effect that he entered the United States on 23 September 1993, via Philadelphia, Pennsylvania. It was later discovered that SR (applicant) in fact entered the United States on 21 June 1990, in Atlanta, Georgia. Of greater importance is SR (applicant's) failure to state and/or admit that INS agents in Atlanta arrested him as he attempted to enter the country for misuse of a resident alien card. It appears that SR (applicant) attempted to gain entry into the United States by illegally using the resident alien card of a family member.
         A U.S. criminal investigation of SR (applicant's) enlistment in the U.S. Navy was initiated at the request of the INS. As a result of a joint investigation conducted by the Naval Criminal Investigative Service and the INS, numerous additional discrepancies and/or false statements regarding SR (applicant's) enlistment were uncovered and noted. The additional discrepancies noted in these investigations are simply to numerous to list.
         It is my belief that based on SR (applicant's) fraudulent enlistment he lacks the honesty and integrity required to be a dependable and productive member of the U.S. Navy and, accordingly, has no potential for further service. In fact SR (applicant) has been in an unauthorized absence status since 2 April 1999.

990409:  Commander, Navy Region, Mid-Atlantic authorized processing for discharge with a general (under 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 990414 with a general (under 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).

 The NDRB found the applicant’s first issue without merit. The record clearly illustrates the applicant made a fraudulent enlistment in the Navy. The reason for discharge shall not change. Further, the applicant’s documented misconduct (Unauthorized Absence), leading to his discharge in absentia with a General (Under Honorable Conditions) is an appropriate characterization of the applicant’s service. Relief is denied.

 The applicant’s second issue states: “(Equity issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.” The The NDRB is authorized to consider post-service factors in the re characterization of a discharge. 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 the civilian life subsequent to leaving the service. Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, may be considered by the NDRB. NDRB did not find the applicant’s post service conduct warranted a change in discharge. Relief is denied.
The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Representation at personal appearance hearing is highly recommended.





Pertinent Regulation/Law (at time of discharge)

 A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 Dec 97 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 5420.174C 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      



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