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NAVY | DRB | 2005_Navy | ND0500907
Original file (ND0500907.rtf) Auto-classification: Denied


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

ex-HN, USN
Docket No. ND05-00907

Applicant’s Request
The application for discharge review was received on 20050504. The Applicant requests his characterization of service received at the time of discharge changed to honorable. The Applicant requests a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20050831. After a thorough review of all available 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 characterization of service and reason for discharge shall not change. The discharge shall remain General (Under Honorable Conditions) by reason of fraudulent entry into military service .
PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“I would like top discharge because my discharge; I feel was due to a recruitment error. I was very disciplined and hard working as a sailor.”


Documentation
In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:
Performance information memorandum, dtd December 13, 2001
Administrative Remarks, NAVPERS 1070/613

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20010321 - 20010327               COG
          Active: None

 Period of Service Under Review :
Date of Enlistment: 20010328             Date of Discharge: 20020816

 Length of Service (years, months, days):

         Active: 01 04 19
         Inactive: None

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

 Age at Entry: 19

 Years Contracted: 4 (12 month extension)

 Education Level: 12                                 AFQT: 53

 Highest Rate: HN

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 2.0 (1)              Behavior: 1.0 (1)                 OTA: 1.60
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214) : National Defense Service 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 :

010320:  Security Clearance Application, Standard Form 86: Applicant answered “NO” to questions 21-23 concerning his police record.

010321:  Application for Enlistment (DD Form 1966): Applicant did not self admit to past criminal activities.
020627:  Commanding Officer, Navy Recruiting District, Houston, TX advised Commanding Officer, Naval Science Health School of Applicant’s possible fraudulent enlistment. Navy Recruiting District’s review of United States Department of Justice Federal Bureau of Investigation National Agency Check and San Angelo Municipal Court Records check revealed Applicant’s failure to disclose his full arrest record of:
         1 - Arrested or received 1999/08/30 STD TX05905727 Agency-Sheriff’s Office San Angelo (TS2260000) Agency Case - 9015783632 - Charge I - Assault causes bodily injury.
         2 - Arrested or received 2000/08/12 SID TX05905727 Agency - police department San Angelo (TX2260100) Agency Case - 9015827265- Aggravated assault with a deadly weapon.
         San Angelo Municipal Court Record listed several misdemeanor violations including two open warrants.

020709:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of defective enlistment and inductions - fraudulent entry into naval service.

020710:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
030812:  Commanding Officer, Naval School of Health Sciences, Portsmouth, VA, forwarded the administrative discharge package to CNPC. Commanding Officer’s comments: HN P_ (Applicant) was administratively discharged from the command on 16 Aug 02. Per CO NDR Houston ltr 5520 Ser 00/0649 of 27 Jun 02 HN P_ (applicant) failed to disclose his full arrest record. Due to administrative oversight the fraudulent enlistment discharge package was not forwarded to BUPERS 932 last year.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20020816 by reason of defective enlistment and induction due to fraudulent entry (A) with a service characterization of general (under honorable conditions). After a thorough review of all available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).

Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. After a thorough review of the Applicant’s case the Board discovered no impropriety or inequity. When the service of a member of the U.S. Navy has met the standard of acceptable conduct and performance, it is appropriate to characterize that service as honorable. A General (under 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. Certain serious offenses warrant separation from the naval service in order to maintain proper order and discipline. The Applicant’s failure to disclose his civilian arrest record for assault causing bodily injury and aggravated assault with a deadly weapon as well as two open arrest warrant’s substantiate the Applicant’s fraudulent entry into the military for which he was separated. The Applicant’s conduct, which forms the primary basis for determining the character of service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls short of that required for an upgrade in the characterization of service. Relief is not warranted.

The Board found that the Applicant deliberately misrepresented his past criminal activity 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. No other narrative reason more clearly describes the circumstances surrounding the Applicant’s processing for administrative separation. Relief denied.

The Applicant states he was a “disciplined hard working sailor”. In the Applicant’s case, the characterization of service should be the “type warranted by service record.” Based on one report with an overall trait average of 1.60 the Board found the discharge proper and equitable. Therefore, relief denied.

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 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. The Applicant has not provided documentation for the Board to consider.

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), 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 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 .

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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