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NAVY | DRB | 2005_Navy | ND0500430
Original file (ND0500430.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND05-00430

Applicant’s Request
The application for discharge review, received 20050110, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to other. The Applicant requests a personal appearance hearing before the Board in the Washington, D.C. Metropolitan area. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing. The Applicant did not list any representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20050428. 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 and reason for the discharge shall not change. The discharge shall remain: UNCHARACTERIZED/FRAUDULENT ENTRY INTO MILITARY SERVICE, authority: NAVMILPERSMAN, Article 1910-134 (formerly 3630100).


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1. “I would like to have my RE-Enlistment code changed and my discharge characterization upgraded so that I can have the opportunity to serve my country during this time of war. I am requesting this due to the fact that when I enlisted in the Navy in 2001 my recruiter, Chief S_, told me that if I had anything “in my closest” that I should not say anything. I listened to him and did not say anything about my two juvenile convictions (1. unauthorized use of a motor vehicle, 2. conspiracy to break and enter a motor vehicle) which were both misdemeanors. When I go to Basic Training they had a “Moment of Truth” when they said that even if your recruiter told you not to say anything that you should say it now. I did the Honorable thing and told them everything about my juvenile record and that I had been a member of a small “crew” when I was 14-15 years old but that I had stopped hanging out with them at the age of 16. They told me that it was too bad and that if I had said all this before enlisting I would have been fine. I was discharged for Fraudulent Entry. I feel that this is wrong because I was misled by my recruiter and punished when I told the truth, I would really like to have a chance to serve my country and defend my home in this time of war.”
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)     010519 - 010822  COG
         Active: USN                        None

 Period of Service Under Review :
Date of Enlistment: 010823               Date of Discharge: 010906

 Length of Service (years, months, days):

         Active: 00 00 15
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: NFIR*

 Highest Rate: SR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NOB**                Behavior: NOB             OTA: NOB

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: None

*Not found in record
**Not Observed

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

UNCHARACTERIZED/FRAUDULENT ENTRY INTO MILITARY SERVICE, authority: NAVMILPERSMAN, Article 1910-134 (formerly 3630100).

 Chronological Listing of Significant Service Events :

010518:  Navy Illicit Behavior Screening Certificate: (NAVCRUIT 1133/65): Applicant failed to disclose pre-service police record and gang affiliation.
010829:  Applicant notified of intended recommendation for discharge by reason of defective enlistment and induction due to fraudulent entry as evidenced by moment of truth. Applicant notified that if separation is approved, the least favorable characterization of service is general (under honorable conditions).
010829:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

010831:  Commanding Officer, Recruit Training Command authorized the Applicant's discharge with an uncharacterized service 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 20010906 with an uncharacterized service 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 contends his discharge was improper because his recruiter instructed him to withhold information concerning his juvenile civilian convictions and gang involvement. The Applicant’s contention is without merit. A statement in the record signed by the Applicant indicates that he did not tell his recruiter about his civilian misconduct during the recruitment process. Thus, the Board concluded that the Applicant intentionally withheld enlistment disqualifying information from competent authority and therefore was properly processed for defective enlistment and induction – fraudulent entry. Relief denied.

 By regulation, members discharged within the first 180 days of enlistment are given characterization of service uncharacterized or entry-level separation unless there were unusual circumstances regarding performance or conduct, which would merit an honorable characterization. Applicant's service record did not contain any unusual circumstances during his less than three weeks in the military to warrant a change of discharge to honorable.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

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), Change 32, effective 26 Apr 01 until 21 Aug 02, 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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