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NAVY | DRB | 2002_Navy | ND02-01175
Original file (ND02-01175.rtf) Auto-classification: Denied


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

ex-CTM3, USN
Docket No. ND02-01175

Applicant’s Request
The application for discharge review, received 020809, requested that the characterization of service on the discharge be changed to honorable. The Applicant requested 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 030515. 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).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. My discharge was improper because it was based on information that was given to the best of my knowledge or later, voluntarily when it was requested and needed.

2. My discharge was unjust because it was based on certain events (prior financial delinquencies) that should not have been used against me.

3. My characterization of discharge was unjust because in 20 months of active duty no adverse action occurred.

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Commander, Naval Personnel Command letter to CO, NSGA, Norfolk, VA, dated Aug 10, 2000
 Applicant's letter to the Board, dated Jul 22, 2002
SF 86, National Agency Check Security Information, dated Dec 7, 1998 (12 pages)
 SF 86, Authorization For Release Of Medical Information and Questionnaire for National Security Position, dated Jan 18, 1999 (10 pages)
 SF 86, Field Result, Neighborhood Interview, dated Apr 8, 1999 (17 pages)
Applicant's interviews from June 23 and 24 and Jul 22, 1999 (10 pages)
Telephonic interview of Dr. M. G_, dated Jul 6, 1999 (2 pages)
Letter of employment from L_ C_, Starbucks Coffee Company undated

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     981208 - 990118  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 990119               Date of Discharge: 001005

 Length of Service (years, months, days):

         Active: 01 08 17
         Inactive: None

 Age at Entry: 21                          Years Contracted: 4 (24 months extension)

 Education Level: 13                        AFQT: 93

 Highest Rate: CTM3

 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: None

*No Marks Found in service record.

 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).

 Chronological Listing of Significant Service Events :

981208:  Application for National Agency Check Security Information: Applicant failed to disclose financial delinquencies, drug use (excluding marijuana use), and psychiatric counseling/treatment.
981208:  Waiver granted for marijuana use of two times - experimental use.

990225:  Waiver granted for one time shoplifting charge - 8/91.

 000318:  Defense Security Service Investigation conducted - not contained in service record.
000810:  CNPC advises NSGA, Norfolk, VA, that Applicant failed to disclose his financial delinquencies, drug use and psychiatric counseling/treatment and requested the command process for fraudulent enlistment
000828:  Applicant notified of intended recommendation for discharge with a general (under honorable conditions) by reason of defective enlistment and induction due to fraudulent entry.
000831:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected the right to obtain copies of the documents used to support the basis for the separation, and to submit a written statement.

000906:  Applicant's Statement pertaining to Fraudulent Enlistment Administrative Separation.
000906:  Statement on Behalf of CTM3 W_ (Applicant).

 000912:  Commanding Officer, NSGA, Norfolk, VA, recommended Applicant's discharge with a general (under honorable conditions) by reason of defective enlistment and induction due to fraudulent entry. Commanding Officer’s comments (verbatim): "On 20 January 1999, CTM3 M_ W_ (Applicant) was given NAVPERS 1070/613, Page 13 warning for failure to disclose required basic enlistment eligibility information. It further notified CTM3 W_ (Applicant) that continued failure to disclose information would result in administrative processing.
        
From December 1998 to March 2000 CTM3 W_ (Applicant) was the subject of an investigation for access to Sensitive Compartmented Information. This investigation revealed additional information which CTM3 W_ (Applicant) failed to disclose during enlistment processing. Specifically, the type and frequency of drug use prior to enlistment, financial difficulties/indebtedness, engaging in illegal activities such as computer "hacking" into company computers, including NASA, and writing malicious computer code. Additionally, CTM3 W_ (Applicant) was deceitful when asked about unethical/illegal activity while employed as a food service worker and only provided truthful responses when confronted with a polygraph examination. This not only violated the provisions fo the Page 13 Warning on Fraudulent Enlistment, but has provided the Department of the Navy, Central Adjudication Facility with sufficient information to deny CTM3 W_ (Applicant) clearance to work in a classified environment.

CTM3 W_ (Applicant) military performance has been satisfactory with no remarkable incidents. Enclosures (5) (CTM3 W_'s letter of 6 Sep 00) and enclosure (6) (CTMC(SW) R.D. F_, memo of 6 Sep 00) have been reviewed. Recommend CTM3 M_ W_ (Applicant) be separated from military service with a General (Under Honorable Conditions) characterization based on fraudulent enlistment."
000915:  Commander, Navy Region, Mid-Atlantic, Norfolk directed the Applicant's discharge with a general (under honorable conditions) by reason of defective enlistment and induction due to fraudulent entry.

000920:  CO, NSGA, Norfolk, directed PSD, Sewells Point, to discharge Applicant, as approved by the Commander, Navy Region, Mid-Atlantic, Norfolk, VA.

001026:  CNPC advised NSGA Norfolk, VA, Applicant may have fraudulently enlisted and requested to investigate and initiate administrative separation processing or request waiver of administrative separation processing.

001030:  NSGA, Norfolk, VA advised CNPC of Applicant's discharge effective 10OCT00.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 001005 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).

Issue 1,2 and 3: Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the Applicant’s enlistment. While the Applicant states he voluntarily disclosed information to the Navy after his enlistment, it does not mitigate the fact that he fraudulently enlisted in the Navy. Prior to his enlistment, the Applicant was not forthcoming about his involvement in illegal activity such as using LSD, computer hacking and financial delinquencies. However, the Applicant’s summary of service demonstrated he was a good Sailor and would’ve otherwise had a good career. Unfortunately, the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, demonstrated he was unsuitable for further service. An upgrade to honorable conditions would be inappropriate. Relief denied.

T here 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 the service. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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. Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge. Evidence of continuing educational pursuits, a positive employment record, documentation of community service, and certification of non-involvement with civil authorities, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct. At this time, the Applicant has not provided sufficient verifiable documentation of good character and conduct to mitigate his misconduct while on active duty. Relief denied.

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 additional documentation to support any claims of post-service accomplishments at that time. 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), Change 18, effective 12 Dec 97 until 2 Feb 01, 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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