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NAVY | DRB | 2006_Navy | ND0600113
Original file (ND0600113.rtf) Auto-classification: Denied


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

ex-AM3, USN
Docket No. ND06-00113

Applicant’s Request
The application for discharge review was received on 20051017. The Applicant requests the Narrative Reason for Separation be changed to “Defective Enlistment Agreement.” 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 reason for discharge shall not change. The discharge shall remain Honorable 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:

 “I formally request that my Narrative Reason for Separation be changed from “Fraudulent Entry into Military” with Separation Code of “JDA” and Reentry Code of “RE-4” be changed to “Defective Enlistment Agreement” with the appropriate Separation Code of “KDS” and Reentry Code of “RE-3” in accordance with DOD Directives 1332.14 (E3. A1.1.5.3.1.3), (continued 14.) 10 U.S. Code 802 ref. (c), and MILPERSMAN 1910-132. My defense of the justifiable change lies primary within the enclosures attached to this letter. To summarize: Prior to my enlistment I was arrested and charged with crimes under civil authority, then coerced by a Judge to make a constrained choice to join a military branch. During the processing into the military I was then told by a lead recruite r to withhold information regarding those civil charges, that they would not be relevant to my enlistment, which is forbidden under COMNAVCRUITCOMINST 1130.8F 2A-6. I believe this case should follow common law in that the precedence of adjudication (whether under the authority of a command officer or otherwise) should be the result of any supporting evidence only. In regards to my case, there had been no contrary evidence on any of my claims. I have come to the conclusion that the command initiated my separation did not take into account the evidence b ut made its decision of my separation details only on irrational “feeling” of opinion. In addition, it failed to complete a thorough investigation of my claims before making these hast decisions about my separation. If any Investigation agency is able to provide contrary evidence I am more than willing to challenge its basis in a legal environment. Thus far none has been presented by the initiating Command or Investigative Command, and I believe this to be exemplary subject to request the appropriate and justifiable change be made to my DD214.”
Applicant’s Remarks: (Taken from the DD Form 293)

“I have no intention of ever re-enlisting in any branch of service, but I have held and will continue holding strong to my accomplishments during my time in the Navy. I do no regret my service and will always support my country’s honorable intentions. Even in spite of the things I have done wrong in the past, I will always be able to say that I made myself a better person while serving in the U.S. Navy.

Note that enclosures (5) Court Order by Judge P_ M_ was not included with the enclosure (2) Administrative Separation ICO AM3 C_ V. H_ (Applicant) of this letter that was to be forwarded to an Investigative Command. Enclosure (1) of this letter was to be forwarded to the Investigative jurisdiction (IG) for review of fault. It alarmingly comes to my attention that one of the most important documents would be withheld from that package by HC-3. I was not able to obtain the remaining enclosures of enclosure (2) of this letter from the initiating command, HC-3. I have not been able to obtain investigation results or status for the IG case from the initiating command (HC-3) or Navy IG.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Commanding Officer’s Administrative Separation Letter (3 pgs)
Applicant’s Request for Separation dtd August 15, 2004 (2 pgs)
Applicant’s Request for Separation dtd September 23, 2004 (3 pgs)
Court Order
Letter to Commanding Officer, Helicopter Combat Support Squadron from R_ H_ (Applicant’s father) (2 pgs)
FBI Identification Record (2 pgs)
CNO Washington DC, Seaman to Admiral Selectees message dtd October 19, 2003 (4 pgs)
Beneficial Suggestion, Invention Patent Application Cover (3 pgs)
Transcript from Kilgore College
Transcript from Southwestern College
Class Honor Student Letter from Commanding Officer dtd July 01, 2002

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20010829 - 20020213      COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20020214             Date of Discharge: 20041216
Length of Service (years, months, days):

         Active: 02 10 03
         Inactive: None

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

 Age at Entry: 19

Years Contracted: 4

Education Level: 12                                 AFQT: 87

 Highest Rate: AM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.6 (3)              Behavior: 3.0 (3)                 OTA: 3 .39

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


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

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

010806:  Applicant arrested by Bryan, Texas Police Department for theft and criminal trespassing. He was subsequently charged with possession of a hoax bomb during the investigation [Extracted from CO’s message].

010830:  Office of Personnel Management Security Clearance Application: Applicant answers “NO” to question # 21 Have you ever been charged of any felony offenses; question #22 Have you ever been charged with or convicted of a firearms or explosives offenses; question # 23 Are there currently any charges pending against you for any criminal offense; question # 26 In the last 7 year, have you been arrested for, charged with or convicted of any offense(s) not listed in modules 21, 22, 23, 24 or 25?

010902:  FBI Identification Record [Extracted from case file].

020107:  Applicant pleads guilty to possession of a hoax bomb and criminal trespassing in Brazos County, Texas Court. Sentenced to 26 days confinement and a $100.00 fine [Extracted from CO’s message in case file] [Date extracted from Applicant’s letter in case file].

040923:  Applicant given Acknowledgment of rights (AOR) statement notifying him of his violation of UCMJ Article 83, fraudulent enlistment, appointment, separation.

040923:  Applicant submits request for separation to Commanding Officer, Helicopter Combat Support Squadron THREE.

040923:  Applicant Submits addition to separation request to HC-3. Findings from an FBI report of charges against the Applicant. Applicant states in this additional document that he reported the defect the following working week to his Chain of Command after reading and understanding the applicable directives and codes regarding such evidence of possible fraudulent enlistment charges. [Extracted from case file].
041130:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of fraudulent entry into military service [Extracted from case file].

041130:  Applicant advised of rights and having elected not to consult with qualified counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation [Extracted from case file]
041130:  Commanding Officer, Helicopter Combat Support Squadron THREE authorized the Applicant's discharge with an honorable by reason of fraudulent entry into military service [Extracted from case folder].
050209:  Commanding Officer, Helicopter Combat Support Squadron notified CNPC of Applicant’s discharge honorable by reason of defective enlistment and inductions fraudulent entry into the Naval Service. Commanding Officer’s comments: “Per reference (a), I separated Petty Officer H_ (Applicant) from the Naval Service because of his fraudulent enlistment. I have determined that a waiver is not in the best interest of the Navy because he does not deserve one. Petty Officer H_ (Applicant) wants very much to get out of the Navy. Although he showed some technical ability, he had problems with motivation and authority. He went to XOI on one occasion and received several informal counseling chits. His direct supervisor did not recommend retention. These issues, coupled with the severity and types of crimes he committed prior to enlisting, led me to process Petty Officer H_ (Applicant) without requesting a waiver. Due to the severity of the claims Petty Officer H_ (Applicant) and his father made against his recruiter, I am also forwarding a copy of this report to Navy Inspector General for further investigation.” [Extracted from case folder].

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20041216 by reason of defective enlistment and induction due to fraudulent entry (A) with a service characterization of honorable. 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 Board presumed regularity in the conduct of governmental affairs (D).
The Applicant implies that the narrative reason for discharge, fraudulent entry into military service, was the result of advice given to him by his recruiter to withhold information regarding his involvement with civil authorities. The Applicant also implies that the command initiated his separation without taking into account the evidence. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that the recruiter misled him through the recruitment process. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. Relief denied.

The Applicant states “I have no intention of ever re-enlisting in any branch of service, but I have held and will continue holding strong to my accomplishments during my time in the Navy”. The Applicant’s quality of service has been recognized in the fact that he received an Honorable discharge. However, “I formally request that my Narrative Reason for Separation be changed from “Fraudulent Entry into Military” with Separation Code of “JDA” and Reentry Code of “RE-4” be changed to “Defective Enlistment Agreement” with the appropriate Separation Code of “KDS” and Reentry Code of “RE-3”. For the edification of the Applicant, the NDRB does not have the authority to change Applicant’s narrative reason for separation to one for a “Defective Enlistment Agreement” as requested since regulations do not authorize use of that specific narrative reason. The Applicant may however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning relief in this matter.
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. For the edification of the Applicant, the NDRB can only correct a Separation Code when an administration error has been discovered on the Applicants DD Form 214.


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), 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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