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NAVY | DRB | 2004_Navy | ND0401428
Original file (ND0401428.rtf) Auto-classification: Denied


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

ex-MASN, USN
Docket No. ND04-01428

Applicant’s Request
The application for discharge review was received 20040917. The Applicant requested that the characterization of service of the discharge be changed to honorable. The Applicant requested a documentary record review. The Applicant listed civilian counsel as the representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20050224. 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: 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 stated
1. “My discharge was inequitable because it was based on an incident which I had been advised by legal counsel to report as I did at the time of my entry into service.”
Additional issues submitted by Applicant’s counsel/representative (CIVILIAN COUNSEL):
“2. MASN M_ (Applicant) was advised under existing State of Oklahoma Laws that he did NOT have a criminal record at the time of his enlistment.
3. Navy recruiters examined all records and passed him for enlistment. Also Navy recruiters noted on DD Form 1966 dated 17 July 2001 that “Mr. M_ (Applicant) is not required to meet high performance profile criteria (HP3), is not enlisting in the nuclear field program. Any deviation from accepted standards was reviewed as a matter of public record. Obviously the Navy did this check and for whatever reason changed the standard to his detriment.
4. MASN M_ (Applicant) has at all times acted in good faith and his records substantiate this. Moreover, the record shows a letter from a sitting judge, stating the offense is not, under Oklahoma Law, a crime. He adopts and incorporates herein the letter from M_ T. R_ to Congressman S_ as it is set forth herein. Federal law, in dealing with state matters, (law) is required to apply state law as the correct standard: thus the convening authority was wholly in error and misinformed.
5. Suggest you check the entire file to note substantiation of claims made by MASN M_ (Applicant) that: a. Navy JAG counsel assigned to assist was aware of the existence of FBI report or it’s contents while advising MASN M_ (Applicant).
b. LT. T_ (Navy JAG) believed MASN M_ (Applicant) to be most worthy of a waiver to continue service in the Navy.
c. MASN M_ (Applicant)’s peers consider him an asset to the Navy.
d. No opportunity was given MASN M_ (Applicant) to review or defend the FBI report included in forwarded documents with recommendations for discharge. Waivers are normally granted for this type of offense. It is noted that the form you supplied for issues states that “Unless indicated by special instructions, these issues supersede all prior issues submitted.

PLEASE REFER TO PACKAGE OF RECORDS AND DOCUMENTS SUBMITTED EARLIER AND RECEIVED BY YOUR RECORDS ON 17 September 2004. (If you do not hold these documents, please advise so that they can be supplied prior to your decision).

ALSO NOTE ATTACHED LETTER AND DOCUMENTS FROM SENATOR J_ M. I_
OF OKLAHOMA”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter to BCNR from Senator I_, dated January 31, 2005
Letter from Court of Civil Appeals, dated April 21, 2003 (2 pages)
Applicant’s DD Form 214
Statement from Applicant, not dated (2 pages)
Letter from Applicant’s father to C.O. FLTACT, Sasebo, Japan, dated January 30, 2003
Court of Appeals letter, dated April 24, 2003 (2 pages)
Letter from Applicant’s father to Undersecretary of Navy for Manpower, Not dated
Oklahoma County Court Letter of Criminal and Misdemeanor Records Check, April 16, 2003
14 pages from Applicant’s service record
Email correspondence (8 pages)
FBI report, dated December 4, 2001
Letter of reference, dated February 3, 2003
Letter of reference, not dated
Letter of reference, dated February 12, 2003
Memo Notes Document, dated April 23, 2003
Letter to M_ R_, Esq., dated May 4, 2003
Questionnaire on Applicant’s character (6 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     010720 - 010916  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 010917               Date of Discharge: 030509

 Length of Service (years, months, days):

         Active: 01 07 23
         Inactive: None

 Age at Entry: 33                          Years Contracted: 4

Education Level: 12                        AFQT: 65

 Highest Rate: MASN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (1)             Behavior: 3.00 (1)                OTA: 3.00

 Military Decorations: None

 Unit/Campaign/Service Awards: OSR, NDSM

 Days of Unauthorized Absence: None

 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 :

010917:  Application for Enlistment (DD Form 1966): Applicant failed to disclose pre-service criminal activities [extracted from Commanding Officers letter dated 030306].

030122:  Applicant notified of intended recommendation for discharge by reason of defective enlistment and induction due to fraudulent entry. Applicant notified that if separation is approved the least favorable characterization of service is general (under honorable conditions).
030128:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article, 27(b), elected to consult with qualified counsel, submit a written statement, obtain copies of documents that will be forwarded to the separation authority supporting basis for proposed separation, and review by GCMCA.

030204:  Applicant’s letter to GCMCA.

030213:  Applicant submitted Administrative Separation waiver request.
030306:  Commanding Officer recommended discharge with a general (under honorable conditions) by reason of defective enlistment and induction due to fraudulent entry.

030313:  GCMCA review conducted. All requirements for administrative processing have been met.

030320:  Commanding Officer, Fleet Activities, Sasebo directed the Applicant's discharge with a general (under honorable conditions) by reason of fraudulent entry into the naval service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030509 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: The Applicant states his discharge was based on one isolated incident. The Board found that the documentation and statements provided for review do not refute that the Applicant deliberately misrepresented his involvement with the law (DUI and Marijuana possession) during the enlistment process, including the omission or concealment of facts which, if known at the time would have reasonably been expected to preclude, postpone, or otherwise affect the Sailor’s eligibility for enlistment or induction. The Applicant should be made aware that the questions on the enlistment questionnaire compelled truthful responses. Relief denied.

Issues 2-5: The Applicant concealed information from the court that would provide evidence of the judge’s orders for expungement of his criminal record. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. Specifically, the Applicant’s counsel alleged that the Applicant was told that he would not have a criminal record, his offenses would not be listed as a crime, and that the Applicant’s recruiters examined all documents before enlistment. The record, however, contains no evidence of any wrongdoing by the government in the discharge processing. 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. 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), re-issued October 2002, effective 22 Aug 02 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 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.
C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

 D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .
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 “ http://Boards.law.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:

                  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

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