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


FOR OFFICIAL USE ONLY


ex-HTFN, USNR
Docket No. ND06-00096

Applicant’s Request

The application for discharge review was received on 20050922. 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 20060810. 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 reason for discharge shall not change. The discharge shall remain General (Under Honorable Conditions) by reason of defective enlistment and induction due to fraudulent entry .

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PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

“1.) Discharged General (Under Honorable Conditions) Fraudulent Entry Into Military. I Believe this should be changed to Honorable. To show that I fulfilled my full agreement with the US Navy. 2.) Compensation: (Financial, Medical, Dental) for my full contract served. Also, any and all benefits that I would be entitled to if full contract was served.”

“Naval Council of Personnel Boards,

First to introduce myself, my name is K_ J_ M_ SR. (Applicant). I would like you to review the following information and set the records straight.

I filled out the paperwork for my clearance in February of 2004. They are saying that it was fraudulent entry into the Military because I never mentioned anything about the delinquent bills or the domestic violence. There are specific reasons why I did not note them in the paperwork when I was filling it out for my clearance. The delinquent bills I did not know about until May 2004, when my wife and I applied for a loan for a house and received our credit report back. All of the delinquent bills were prior to my wife and me getting together. When I separated from my ex we both agreed on certain bills we would take care of those were bills she was to take care of But once my wife and I found out that they were on my credit and messing it up we started paying everything off I have all of the paperwork to prove this. The credit report (item # 1; 5 pgs), copies of checks and bank statements to verify they were paid (item # 2; 8 pgs), the child support information to show that it was completely cleared up (item # 3; 1 pg). The domestic violence was dismissed and because it was dismissed I did not know it was something that I needed to report. I have the back-up from the courts a print out from the court web site showing that it was dismissed (item # 4; 1 pg) I also have a copy of the original card that was sent to me at my home that says that it was dismissed (item #5; 1 pg). I explained all of this many times to legal and SR Chief F_ from February 2005 thru April ₁₈ th 2005 when they told me I was being separated from the Navy. The same copies that I am giving to you I gave to them. I even filled out a chit to speak personally with the repair officer Commander P. B. S_. I was denied that, I was continually being told that they wanted to wait until he was in a good mood. I never got up to see him. Since March 2005 I was told that I was being separated out and then about a week later I was told that I was going to be able to stay in just change rates, they gave me information on four different jobs I could switch too; there were 3 in Aviation one as a Structural Mechanic, one as a Machinist’s Mate and one other, the other was Store Keeper. My wife had a procedure she needed to have done. I was out for two or three days I came back and I was told that I was going to be separated out again. I went back over everything with SR Chief F_, again and then talked with legal and a couple of days later I was told that I would be able to stay in. But, would not be able to choose the job that I was going to go into, that there was only one job which, was the Store Keeper position now that I could move into. I did not agree with it because I truly believed this was all incorrect. Because, I don’t feel I did anything wrong. But, I agreed to go along with it. Then on April 12 ^th 2005 I had to rush my wife into the emergency room. They found that she had a very 1g. Kidney stone. They could not remove it until Friday April 15 ^th 2005 due to some authorizations that Tri Care needed. I had to stay home and take care of her and our kids because she could not get out of bed. They did the surgery on the 15 ^th of April. I went back to work on the April 18 ^th 2005 and was told that I was being separated from the Navy and only had 6 weeks. The back-up for this is (item #6; 6 pgs).

As far as me not advancing in the Navy; the first time that I was going to take the Advancement test I missed the window by about two weeks and I was not allowed to take it. The second time was when all of this was happening and I was completely ready to take the test but, the night before about 9:30 PM I was to take it my 1 ^st class called me and told me that I could not take the test that I had to report to the shop 1 ^st thing in the morning, no other explanation. As far as the PRT’s I failed the first one due to the time it took me to run the PRT, not from the body fat and then I went on Mando. I then passed the one in September of 2004. The one I just took I failed but it was while my family’s and my life was being flipped upside down. I could not keep my mind on the run because this was during one of the times that I had been told that I would be separated from the Navy, it was not due to the body fat. Every other week they were telling me you’re in, now your out. I have a wife and one biological child and two children that I am in the process of adopting that I am 100 % responsible for. Their father has not paid support for them since 2003 (item #7; 1 pg) I am supporting them completely. I am a squared a way man. I have not been into any trouble, I don’t go out with the boys after work I go home with my wife and take care of my kids. As you can see from my evaluation report I have it together (item # 8; 2 pgs). I was selected as Hull Branch “Bluejacket of the Quarter” for fourth quarter (item #9; 1 pg) I was also selected as “Craftsman of the Month” September 2004 (item # 10; 1 pg). I never intentually lied about anything. All I ever wanted was to be a good sailor and take care of my family and I can’t do that if I lie or cheat anyone.

I am also sending (item #11; 5 pgs) my intent to deny security clearance. My DD Form 214 (Item # 12; 1 pg) and (item# 13; 3pgs) which, is my budget so that you can see my wife and I had our expenses under control.

Again, I would like this Discharge to be changed to show that I fulfilled my full agreement and stayed in the Navy until my full term was up (Honorable). I did not want to get out of the Navy and I did not Dishonor the Navy. But, I do feel that my family and I was Dishonored by the actions that were taken. I also, feel that that I should be entitled to my entire compensation package for the difference between the time I was discharged and the time my contract would originally be up. I moved my family across the country and was unfairly separated. This has been a severe hardship on my family.
If you need to talk to my wife or I about anything please feel free in contacting us. Thank you again in advance for your time,

K_ M_ Sr. (Applicant)”

Applicant’s Remarks: Taken from the DD Form 293 and from an attached letter to the Board:

“I believe that the US Navy did a dis-service when discharging me. I am a man of Honor, Courage and Commitment. I had great Honor in being a part of the US Navy. My life consisted of my wife, our kids and the Navy. I did not go out and degrade or Disrespect the US Navy. My family I felt pride in being part of the US MILITARY. I have never once lied to anyone about anything in the Navy. I gave everyone all of the information that I had at the time I got it.”

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Equidata Credit Report, Integrity Home and Finance IN, dtd May 4, 2004 (5 pages)
Payments of bills, undated (7 pages)
Child Support Account, dtd July 2, 2005
Court Paper Work, Hamilton County Courthouse, dtd October 28, 2002 (2 pages)
Medical documents, Baptist Medical Center of the Beaches, dtd April 12, 2005 (6 pages)
Applicant’s wife child support account, dtd March 12, 2004 (3 copies)
Evaluation Report & Counseling Record, dtd July 16, 2004 to June 01, 2005 (2 pages)
Blue Jacket of the Quarter, 4 ^th quarter, undated (2 pages)
Ltr from Director, Department of the Navy, Central Adjudication Facility, dtd Feb 05, 2005 (5 pages)
Applicant’s DD Form 214
Budget Report, undated (3 pages)
Ltr from Department of the Navy, Board for Correction of Naval Records, dtd August 30, 2005
Character Reference ltr from T_ M_, dtd December 2, 2005 (2 pages)
The State of Ohio, Hamilton County Court of Common Pleas, dtd October 14, 2004 (3 pages)
Character Reference ltr from T_ M_, dtd February 15, 2006
Duval County Public Schools Memorandum, dtd January 26, 2006
Ltr from Applicant, dtd March 8, 2006
Applicant’s Medical documentation, (46 pages)

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PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

         Inactive: None
         Active: None

Period of Service Under Review :

Date of Enlistment: 20021119             Date of Discharge: 20050601

Length of Service (years, months, days):

         Active: 02 04 03 (Does not include lost time.)
         Inactive: 00 02 09

Time Lost During This Period (days):

         Unauthorized absence: 1 day
         Confinement:              None

Age at Entry: 26

Years Contracted: 8 (12-months extension)

Education Level: 12                                 AFQT: 46

Highest Rate: HTFN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance: 3.5 (2)              Behavior: 2.0 (2)                 OTA: 3.00

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal, Global War On Terrorism Service Medal.

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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 :

030129:  Commenced active duty for a period of 4 years.

030707:  Applicant to unauthorized absence at 0645 on 030707.

030708:  Applicant from unauthorized absence at 1300 on 030708
         (1 day/surrendered).

050205:  Ltr from Director, Department of the Navy, Central Adjudication Facility, dtd February 05, 2005.

050401:  COMNAVPERSCOM , directed the Applicant's security clearance be revoked.

050413:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of fraudulent enlistment.

050418:  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.

050601:  Commander, Southeast Regional Maintenance Center, notified to the Commander, Navy Personnel Command that the Applicant be discharged with a general (under honorable conditions) by reason of fraudulent enlistment. Commanding Officer’s comments: “(1) Member has seen the command financial specialist on several occasions once I was notified, via enclosure (2), of member’s financial issues. Child support is currently up to date. Oldest child has already graduated high school, has full-time employment and is not married. Member’s 10 year old biological son is currently living with his mother (member’s ex girlfriend). Member lives with spouse and her two children from a previous marriage. Their income tax refund paid off the Sears credit balance. Five other companies member was indebted to have written off the charges however, they remain on his credit report for seven years. Spouse has full-time employment and they have one vehicle that is in her name.
(2) Member received an entry waiver for the arson arrest but says he thought the domestic violence arrest, which occurred with ex-girlfriend, happened after he filled out his security questionnaire. The drug possession arrest was dismissed in civilian court prior to entry.
(3) Although member is making progress with his personal affairs, he is struggling to remain a promising Sailor. His recent PFT failure was his second since Fall 2003. With Perform to Serve requirements in mind, I have therefore authorized local separation effective 1 June 2005, in accordance with reference (b) for Fraudulent Enlistment with a General (under honorable conditions) discharge (separation code: JDA) (enclosure (5)).”

*Service Record was missing elements of the Summary of Service.

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PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20050601 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 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 Applicant requests an upgrade to his characterization of service to honorable. The Applicant contends that he “never intentionally lied about anything”, implying that his discharge for fraudulent entry into the Military was improper. The NDRB advises the Applicant, that per the Naval Military Personnel Manual, (NAVPERS 15560C), members may be separated for effecting a fraudulent enlistment, induction, or period of service by falsely representing or deliberately concealing any qualifications or disqualifications prescribed by law, regulation, or order. The NDRB found that the Applicant’s record showed credible and substantiated evidence, that the Applicant concealed information about a past arrest and financial indebtedness, information he was obligated to provide to the Defense Security Service agent, during his security interview. In the Applicant’s case, the Board found that the Applicant in his DSS interview on 20060225, failed to disclose his arrest for domestic violence. The Applicant’s contention that he didn’t provide the information about the arrest because it was dismissed is immaterial; he was still obligated to provide the information. The record also shows that based on his Trans Union Credit Report (20040319), the Applicant had numerous delinquent debts. The Applicant contends the debts were the responsibility of his ex-wife based on a previously agreed arrangement. The NDRB advises the Applicant that service members are responsible for all just debts they incur to include debts by dependents and others they authorize to establish credit in their name. The Applicant has not provided a legal and binding agreement that stipulated the division of the marital debts and or property, which would absolve the Applicant of responsibility, for the debts listed on his credit report. In the absence of that documentation, the Board determined the Applicant was responsible for the debts and required to provide a complete disclosure of his financial status. The Board also noted that the Applicant failed to disclose he was delinquent in his child support payments. The Board could discern no impropriety or inequity and therefore consider the Applicant’s discharge proper and equitable. Relief denied.

The Applicant seeks compensation covering the period from his date of discharge to his EAOS. The NDRB advises the Applicant that issues involving back pay are not within the authority of the NDRB. The Applicant is further advised that, once discharged from service, an individual is no longer entitled to pay. Relief denied.





For the edification of the Applicant, 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 the service. The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the discharge was appropriate and that the evidence of post-service conduct was found not to mitigate the conduct, which precipitated the discharge. 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 additional evidence related to this 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 11, effective
3 May 2005 until Present, Article 1910-134, 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 .










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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