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NAVY | DRB | 2004_Navy | ND04-00028
Original file (ND04-00028.rtf) Auto-classification: Denied


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

ex-STSSN, USN
Docket No. ND04-00028

Applicant’s Request
The application for discharge review, received 20031001, requested that the characterization of service on the discharge be changed to entry level separation or uncharacterized. The Applicant requested a documentary record discharge review. The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040712. 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: UNDER OTHER THAN HONORABLE CONDITIONS/Fraudulent entry, authority: NAVMILPERSMAN, Article 3630100.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

I respectfully request my discharge categoration be changed in consideration of the following:

1. “Service during my enlistment was of an acceptable nature. There were no disciplinary measures required.”
2. “Urinalysis tests during my enlistment did not show the presence of drugs or alcohol.”
3. “I had no adverse interaction with law enforcement while enlisted, nor interaction resulting in a criminal charge.”
4. “I had no adverse interaction with law enforcement since being discharged, no interaction resulting in a criminal charge.”
5. “Categorization of my discharge was based upon a single incident of omission during enlistment.”
6. “Requests and attempts by myself and others that I remain enlisted in any rate did not seem to be considered.”
7. “ I had not yet served on active duty aboard any vessel in the U.S Navy but had only attended schools and performed duty on bases.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Copy of DD Form 215
Employment Confirmation Letter dated October 27, 2003

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     870630 - 871122  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 871123               Date of Discharge: 891215

 Length of Service (years, months, days):

         Active: 02 00 23
         Inactive: None

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

 Education Level: 12                        AFQT: 60

 Highest Rate: STS3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NOB*                 Behavior: 3.50 (2)                OTA: NOB

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: None

*Not Observed.

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

UNDER OTHER THAN HONORABLE CONDITIONS/Fraudulent entry, authority: NAVMILPERSMAN, Article 3630100.

 Chronological Listing of Significant Service Events :

890216:  Applicant notified of intended recommendation for discharge with an general under honorable conditions by reason of defective enlistment and induction due to fraudulent entry into naval service as evidenced by fraudulent enlistment.

890223:  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 and the right to submit statements, the right to consult with counsel qualified under Article 27 (b) of the UCMJ or, when circumstances warrants, nonlawyer counsel, the right to a minimum of two working days to respond to the Notice of Notification Procedures Proposed Action, applicant did object to separation.
890807:  Applicant notified of intended recommendation for discharge with an under other than honorable conditions by reason of defective enlistment and induction due to fraudulent entry into naval service as evidenced by fraudulent enlistment by concealing pre-service drug abuse and drug trafficking.
890808:  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 and the right to submit statements on own behalf either verbally or in writing before an Administrative Board or in writing if an Administrative Board is not convened.
891006:  Commanding Officer recommended discharge with an under other than honorable conditions by reason of defective enlistment and induction due to fraudulent entry into the naval service as evidenced by fraudulent enlistment by concealing pre-service drug abuse and drug trafficking. Commanding Officer’s comments (verbatim): Enclosures (1) through (5) are submitted to document the reasons for processing this case. STS3 R___ reported to this command as a student on 1 July 1988. Upon receipt of his background investigation by DIS date 1 December 1988, several discrepancies in the initial enlistment were exposed. He has been involved in the following activities: Illegal use of marijuana from January 1985 to an unspecified period in 1987; illegal use of cocaine, hashish and meth-amphetamine. Based on the information provided by enclosure (5), I have determined that he has no potential for continued service and strongly recommended he be separated from the naval service with a characterization of service as Other Than Honorable.

891130:  CNMPC directed the Applicant's discharge with an under other than 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 19891215 with an under other than 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).

 Issues 1-3, 5-7. When the service of a member of U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. An Under Other Than Honorable Conditions 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 was discharged due to defective enlistment due to fraudulent entry into the naval service as evidenced by fraudulent enlistment by concealing pre-service drug abuse and drug trafficking. 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.

Issue 4. 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, however, 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 should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities. At this time, the Applicant has not provided sufficient documentation for the Board to consider. Therefore, no relief will be granted.

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 or any other evidence relating to his discharge at that time. Representation at a personal appearance hearing is recommended but not required.








Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 7/86, effective
16 Dec 86 until 19 Dec 93, 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 5420.174C 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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