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NAVY | DRB | 2005_Navy | ND0500398
Original file (ND0500398.rtf) Auto-classification: Denied


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

ex-HR, USN
Docket No. ND05-00398

Applicant’s Request
The application for discharge review, received 20050104, requested that the characterization of service on the discharge be changed to honorable or general (under honorable conditions). The Applicant requested a documentary record review. The Applicant did not list any representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20050214. 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 4 to 1 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:

1. “My discharge was improper because my recruiter was where of my preserve conviction. And at the time probation was not considered a final conviction. But more over I loved being in the military and fighting for my beliefs. My dad was a great soldier for this country (E_ J_ [SSN omitted]). All in all I miss the opportunity to be part of the elite and proud! Thank you.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     890303 - 890312  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 890313               Date of Discharge: 900417

 Length of Service (years, months, days):

         Active: 01 01 05
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 11                        AFQT: 57

 Highest Rate: HA

 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: None

 Days of Unauthorized Absence: 1

 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 :
890313:  Application for Enlistment (DD Form 1966): Applicant failed to disclose pre-service criminal activities, to wit: convicted of burglary in the theft of $21,000 worth of tennis shoes on 880219 for which the Applicant received 5 years probation and arrest by Austin Police Department on charges of public drunkenness on 881001.
900309:  NJP for violation of UCMJ, Article 86 (2 specification): Unauthorized absence from 900227 to 900228 and unauthorized absence on 900305.
         Award: Restriction and extra duty for 45 days, reduction to E-1 (reduction suspended for 6 months). No indication of appeal in the record.
900327:  Naval Hospital, Corpus Christi, notified Applicant of intended recommendation for discharge by reason of defective enlistment and induction due to fraudulent enlistment as evidenced by a felony conviction of burglary. Applicant notified that if discharge is approved, the least favorable characterization of service possible is under other than honorable conditions.

900327:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights. The Applicant did not object to the separation.
900403:  Commanding Officer recommended discharge as service record warrants by reason of defective enlistment and induction due to fraudulent entry. Commanding Officer’s comments (verbatim): “HR E_ J_ Jr. continued declining performance has demonstrated his lack of potential for further Naval services. I recommend that HR J_ be separated from the Navy, as soon as possible, with a discharge as service record warrants.”

900409:  CNMPC directed the Applicant's discharge 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 19900417 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).

Issue 1: Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question. No such impropriety or inequity is evident during the Applicant’s enlistment. The Applicant failed to disclose a preservice felony conviction for burglary in the theft of $21,000.00 worth of tennis shoes prior to his enlistment in the U.S. Navy. The Board reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis. If such a review reveals an impropriety or inequity, relief is in order. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service. Applicable regulations at the time of the Applicant’s discharge, as well as those currently in effect, indicate an under other than honorable conditions discharge is authorized for failure to disclose a preservice felony civilian conviction. As such, the Board found the discharge proper and equitable as issued. Relief denied.

 The Applicant implies that his recruiter was aware of his preservice misconduct upon enlistment. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that the recruiter misled him through the recruitment process. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. Relief denied.

The following if provided for the edification of the Applicant. The NDRB has no authority to provided additional review of this case since Applicant’s discharge occurred more than 15 years ago. The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

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 5420.174D 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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