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NAVY | DRB | 2005_Navy | ND0500750
Original file (ND0500750.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-HT2, USN
Docket No. ND05-00750

Applicant’s Request
The application for discharge review was received on 20050321. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance hearing discharge review before the Board in the Washington, D.C. Metropolitan area. The Applicant did not designate a representative on the DD Form 293. 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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051216. 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) by reason of defective enlistment and induction due to fraudulent entry into military service.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated
Applicant’s issues, as stated on the application and attached document/letter:

“My General (under honorable conditions) Discharge was inequitable because pursuant to MILPERSMAN 1910-134, Separation by Reason of Defective Enlistments and Inductions-Fraudulent Entry into Naval Service (see attached), granting a waiver was denied to me. A General Court-Martial Convening Authority (GCMCA) may grant a waiver and only Navy Personnel Command (NAVPERCOM) (pers-832) may grant all waivers for any of the below offenses:

a. My discharge was inequitable because it was based on conduct and behavior prior to my enlistment. In addition, this information was not listed on my application for military service on the advice of my recruiter. However, irrespective of my past conduct as a youth, after entry into the service I served all requirements in an honorable manner for nearly 5 years.

b. My discharge is both unfair and unjust because after not being truthful about my past drug and criminal involvement as a youth, in an environment that promoted this behavior, I decided to tell the truth about my past. My growth and maturity in the U.S. Navy compelled me to tell Naval Investigators all that I could recall about my past. Unfortunately, my past was weighed much more heavily than my performance and commitment of military service.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (2 copies)
Congressional ltr from K_ G_, dtd December 3, 2004
Congressional ltr from T. E. D_, Director of Congressional Matters, Navy Personnel       Command dtd November 29, 2004 (2 pgs)
Congressional ltr from K_ G_, dtd November 10, 2004
Privacy Act Statement November 4, 2004
Portions of Applicable Personnel Security Guidelines (6 pgs)
Letter of Intent to Revoke Security Clearance dtd June 1, 2004 (2 pgs)
Summary Disqualifying Information (3 pgs)
Instruction for Responding to Letter of Intent (4 pgs)
Rebuttal to Letter of Intent to Deny (4 pgs), not dated and not signed
MILPERSMAN Instruction 1910-134 (5 pgs)
Memorandum for Naval Discharge Review Board (NDRB) dtd February 25, 2005
Navy and Marine Corps Achievement Medal Certificate dtd May 25, 2002
Letter from D_ B_, AP World History/French Instructor Arlington Heights High School      dtd April 25, 2005
Memorandum for Naval Discharge Review Board (NDRB) dtd May 4, 2005

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
Inactive: USNR (DEP)     19980304 – 19981117               ELS
         Inactive: USNR (DEP)     19991103 – 19991122               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19991123             Date of Discharge: 20040820

 Length of Service (years, months, days):

         Active: 04 08 28
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: none
         Confinement:              none

 Age at Entry: 20

 Years Contracted: 4 (43 month extension)

 Education Level: 12                                 AFQT: 37

 Highest Rate: HT2
Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.5 (4)              Behavior: 3.3 (4)                 OTA: 3 .23

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal, Navy Good Conduct Medal.


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

GENERAL (UNDER HONORABLE CONDITIONS)/ FRAUDULENT ENTRY INTO MILITARY SERVICE, authority: MILPERSMAN, Article 1910-134 (formerly 3630100).
Chronological Listing of Significant Service Events :

980304:  Enlisted waiver granted for non-minor misdemeanor (possession of drug paraphernalia) and minor misdemeanor (malicious mischief).

991103:  Enlisted waiver granted for non-minor misdemeanor (drug paraphernalia).

991103:  USN Alcohol and Drug Abuse Screening Certificate (NAVCRUIT 1133/7): Applicant failed to disclose criminal activities. Applicant acknowledged that he had been convicted of one drug abuse offense.
991123:  Applicant briefed on Navy's policy of drug and alcohol abuse.

040601:  Director, Department of the Navy, Central Adjudication Facility letter to the Applicant. Subject: Intent to Revoke Security Clearance. Based on a Defense Security Service investigation of 8 January 2004, summary of disqualifying information provided regarding personal conduct, drug involvement, and criminal conduct. [Copy of document provided by the Applicant].

040820:  DD Form 214: Applicant discharged general (under honorable conditions) by reason of fraudulent entry into military service per MILPERSMAN 1910-104/LTR CO EOD EGLIN AFB dtd 17 Aug 04.
Service Record did not contain the Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20040820 by reason of defective enlistment and induction due to fraudulent entry into military service (A) with a service characterization of general (under honorable conditions). After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C). The Board presumed regularity in the conduct of governmental affairs (D).

 On 20031204 and 20031215, the Applicant made voluntary statements during an investigation by the Defense Security Service, admitting that he frequently used drugs (marijuana, LSD), sold drugs (marijuana, LSD), and that he participated in criminal activities as a member of a gang. The Board found that the documentation and statements provided for review do not refute the presumption that the Applicant deliberately misrepresented his personal conduct, drug use, and criminal activities 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 Applicant’s eligibility for enlistment or induction. No other narrative reason other than fraudulent entry more clearly describes the circumstances surrounding the Applicant’s processing for administrative separation. Relief denied.

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 alleged that he did not reveal information regarding his conduct and behavior prior to his enlistment, based on the advice from his recruiter. The record, however, contains no evidence of any wrongdoing by the recruiter. The Board presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. As such, this Board presumed that Applicant’s discharge was regular in all respects. 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 documentation to support any claims of post-service accomplishments or any other evidence related 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. The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 02 until 2 May 2005, 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 V, Para 502, Propriety .

 C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .

 D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs .

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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