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NAVY | DRB | 2005_Navy | ND0501021
Original file (ND0501021.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-ISSN, USN
Docket No. ND05-01021

Applicant’s Request
The application for discharge review was received on 20050601. The Applicant requests the Discharge Characterization of Service received at the time of discharge be 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 20060316. 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 and reason for discharge shall not change. The discharge shall remain Under Other Than Honorable Conditions by reason of defective enlistment and induction due to fraudulent entry, drug abuse .



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“My discharge was inequitable because it was based on one isolated incident in 42 months of service with no other adverse action.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Fifteen pages from applicant’s service record



PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20000323 - 20000727      COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 20000728             Date of Discharge: 20040205

 Length of Service (years, months, days):

         Active: 03 06 08 (Does not exclude lost time.)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence:    10 days
         Confinement:                       None

 Age at Entry: 23

 Years Contracted: 4 (12 month extension)

 Education Level: 12                                 AFQT: 66

 Highest Rate: IS3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (3)                      Behavior: 2.33 (3)                OTA: 2. 72

 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):

UNDER OTHER THAN HONORABLE CONDITIONS/FRAUDULENT ENTRY INTO MILITARY SERVICE, DRUG ABUSE, authority: NAVMILPERSMAN, Article 1910-134 (formerly 3630100).

 Chronological Listing of Significant Service Events :
030813:  DONCAF Intent to Deny Security Clearance: Preliminary decision to deny a security clearance for SCI to Applicant based upon disqualifying information.
030923:  NJP for violation of UCMJ, Article 92: Failure to obey order or regulation.
 Violation of UCMJ, Article 128: Assault.
Violation of UCMJ, Article 134: General, Article.
         Award: Reduction to E-3. No indication of appeal in the record.

030923:  Retention Warning: Advised of deficiency (Violation of Uniform Code of Military Justice, Article 92 – failure to obey order, Article 128 – Assault and Article 134 – General article conduct to of a nature.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 031023:  Applicant to unauthorized absence at 0700 on 031023.

 031103:  Applicant from unauthorized absence at 0700 on 031103 (10 days/surrendered). EAOS changed to 040807.
031110:  Applicant notified of intended recommendation for separation by reason of defective enlistment and inductions, fraudulent entry. Applicant notified the least favorable characterization of service possible is under other than honorable conditions.
031114:  Applicant advised of rights and having elected to not consult with counsel, elected to waive all rights.
031219:  Commanding Officer, SEAL Team FOUR, recommended discharge under other than honorable conditions by reason of defective enlistment and inductions, fraudulent entry into the naval service. Commanding Officer’s comments: “ISSN R_ (Applicant) intentionally failed to provide all the necessary information to complete a background check for a security clearance and eligibility for access to Sensitive Compartmented Information (SCI). ISSN R_ sis not disclose on his application that he was involved in numerous criminal activities, including possession of marijuana, which he served 730 days in jail. He did not disclose that he had prior service with the Marine Corps. He had denied that he had felony offenses; alcohol/drug related offenses as well as other offenses. Although the case was dismissed due to witness failure to show up for court, he was charged with forcible rape.
 ISSN R_ ability to deliberately omit, conceal and falsify relevant material facts from his personal security questionnaire, personally history statement as well as forms used to conduct investigations, is not with standing to the Navy’s core values. He is a risk that the Navy is not willing to take. Therfore, I have determined that ISSN R_ has no potential for future service and should be separated by reason of defective enlistment and inductions-fraudulent entry into naval service.”
040105:  Commander, Naval Special Warfare Group TWO, concurred with SEAL Team FOUR’s recommendation that Applicant be separated under other than honorable conditions.
040115:  Commander, Naval Special Warfare Command directed the Applicant's discharge under other than honorable conditions by reason of defective enlistment and induction due to fraudulent entry, drug abuse.



PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040205 by reason of defective enlistment and induction due to fraudulent entry, drug abuse (A) with a service characterization of under other than honorable conditions. 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 (B and C).

The Applicant contends that his discharge is inequitable because it is based on a single isolated incident in 42 months of total service. Applicable regulations require that a Sailor’s characterization of service be based upon the member’s total performance of duty and conduct during the current enlistment. Furthermore, there are circumstances where conduct or performance of duty reflected by a single adverse incident may form the basis of characterization for a Sailor’s overall service. The incident need not result in formal punishment to be properly used to characterize a Sailor’s service. The Applicant was separated by reason of defective enlistment and inductions, fraudulent entry. The evidence of record indicates that the Applicant failed to disclose his prior service with United States Marine Corps, as well as disqualifying pre-service criminal misconduct. An under other than honorable conditions discharge is warranted when a member's conduct involves one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service. T he Applicant’s service was marred by nonjudicial punishment for violations of UCMJ Article 92, failure to obey order or regulation, Article 128, assault, and Article 134. Subsequent to his nonjudicial punishment, the Applicant commenced a period of unauthorized absence for 10 days. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy. Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service. Relief is not warranted.

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 2002 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 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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