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


FOR OFFICIAL USE ONLY


ex-MA2, USN
Docket No. ND06-00212

Applicant ’s Request

The application for discharge review was received on 20051114 . 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 2006092 6 . 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 .

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PART I -

APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

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

“ The discharge is improper because my pre-service civilian conviction, properly noted by the military, and cleared, was used in the discharged proceedings.

To whom it may concern,

My name is MA2 J_ B. M_(Applicant). I am writing to you to explain why I feel that I was wrongly separated from the Navy and why I feel that my discharge should be an honorable discharge instead of a general. I was in the Navy for 5 years, two as an SH and the last three as an MA, and I believe that since joining the Navy it was the right career move for me. Since enlisting into the Navy, I have never been in any trouble and have been able to support my family. I have set and accomplished many goals, which have helped advance me in my naval career. Recently, I was discharged from the navy with a general (under honorable conditions) discharge, for charges I faced over 10 years ago which the Navy was already informed about and knew about a year after I first join. Because of this discharge and the way it is worded on my DD214 I have been unable to receive unemployment and have been having trouble finding a job in the civilian workforce. My DD214 states that I had a fraudulent enlistment, which means that my time spent in the Navy counted for nothing. I have a family to support and wish that you can upgrade my discharge to and honorable discharge. Below I have state the charges in which I was discharged for and the reasons why I received those charges. I have also stated my actions in my time spent in the Navy, to give you a better perspective on why I believe this discharge should be upgraded.

On 10 January 1995 , I was in a schoolyard in New Jersey with some friends. We did not belong there and I was cited for trespassing. I paid a $130.00 fine as a result.

On 17 February 1995, I was picking up my cousin from the parking lot to the subway. My cousin had a set of master keys to Toyota vehicles. He had taken change from some cars in the parking lot. I was not aware of what he had done when I picked him up, but police stopped us as we were leaving. We were charged with burglary and possession of motor vehicle master keys. As a result, on 18 October 1995, I was fined $125.00 and sentenced to four years probation. I have paid the fine despite what the Automated Complaint Systems records indicate. That payment is reflected in the New Jersey State Police records.

In the 07 August 1995, I was arrested in New Jersey for possession of Marijuana, a controlled dangerous substance (CDS). It was in two small plastic baggies so I was told that was considered distribution. I was twenty years old at the time and realize that it was a dumb decision. As a result, on 22 December 1995, I was given four years probation to run concurrent with my probation for the 17 February charges, my driver’s license was suspended for six months which is also reflected in the NJ Division of motor vehicles report, and I was fined $850.00 by the judge and learned a valuable lesson. The judge pointed out that this was my second arrest, the first for the charges relating to my cousin having the motor vehicle master keys. At that time, I decided to straighten out my life.

I have also paid off all the debts listed on my credit report. I have contacted the companies claiming the debts as well as the credit bureaus. They each acknowledged that it takes some time to remove the complaints even after they are paid.

In March of 2000, I decided that I would try to join the Navy to see if the military would help me set my life’s course. During my first enlistment in the Navy in May of 2000, while stationed on the USS HAYLER (DDG 997), a background check was conducted that included questions about the charges I faced prior to joining the Navy. A complete investigation was performed, during which I was informed by the Navy that upon completion of the investigation I could either remain in the Navy or be processed out. Defense Security Service, Privacy Act Branch, out of Fort George Meade, Maryland, provided F. J. D_ as the investigator who would look into the charges. While conducting the investigation, the investigator went to my home of record and questioned my family members, friends, and neighbors. Upon completion of the investigation in January of 2001, the Navy and the investigators informed me that everything was cleared and that I could continue my career in the military.

In December of 2001, I was given an honorable discharge from the Navy. At that time, I was the sole provider for B_ J_ M_, my dependent son. Having to care for my son while being on a ship that was about to deploy forced me to make the difficult decision of having to choose between my son and the Navy.

I was out of the Navy for six months, but still had a desire to return and continue my career in the military. As a result, I made all the necessary arrangements needed to make sure my son was well taken care of and I decided to re-enlist.

On the 18 ^th of June, I re-enlisted in the Navy as an MA. While re-enlisting, I was given a form for my security clearance. During the process of filling the form out, my recruiter asked me if I had gotten into any trouble while I was out of the Navy. I responded that I had not. He then told me that I should put no down for the questions on the form; giving me the notion that it was not necessary to list the charges I had from the past. Further, I thought that because the Navy had already investigated my charges during my first enlistment, that it would already be documented and there would be no need to list them again.

After re-enlisting and being rated as an MA, I reported to MA A School in Little Creek, VA. Upon completion of A School, I received orders to report to Naval Station Bremerton in Bremerton, WA. After working a few months there, I was again questioned about my security clearance and why I did not list the charges from my past. When I explained to the investigator the situation, including about how this matter had already been investigated, she looked into the matter and I was again cleared. I was allowed to continue work as an MA in the Security Department until my transfer date. While there I received early promote evaluations and was advanced twice from MASN to MA3 and from MA3 to MA2. I served there for two years. While there, I re-enlisted once again for a period of 6 years.

In October of 2004, I was cut orders to report to COMFLEACT SASEBO (CFAS) in Sasebo, Japan, my current command. Since arriving, I have not gotten into any trouble and I have achieved many of the goals my chain of command has set for me, including getting level 2 patrolman qualified, dispatcher qualified, gate sentry qualified, team leader, and watch bill coordinator, all of which were done in a period of less that two months. I feel my work shows that I love the work and that I really do care about doing a good job and setting a good example for the younger MA’s.

Recently, on 4 March 2005, I was informed by my chain of command to report to the Command Master Chief. When I went to see him, he informed me that there was a problem with my security clearance and that I could no longer work in security. I was then informed to report to TPD to work for them. While at TPD, I requested to speak with my master chief so I could ask him why I had been sent to work at TPD. He informed me that because of my past history, my security clearance had been taken away, making it impossible for me to perform my duties as an MA. However, it was not until 23 March 2005 that I was given the document that contained the reasons my security clearance was being revoked.

On 21 March 2005, I was instructed to go talk to legal in building 80. When I arrived, I was informed that I was being charged with falsifying my enlistment into the Navy and was being kicked out.

All of this is happened over charges that I had already been investigated twice over, both times while honorably serving in the Navy. I believe that it was unfair for me to be yet again prosecuted for the same thing that I have already been cleared of two times before. I enjoy being in the Navy and doing my job. I am asking that you reconsider this decision and grant me an honorable discharge in which I believe I deserve.

Very Respectfully,
[signed]
J_ M_(Applicant)
MA2, USN ”

Documentation

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

Letter to Applicant from D. L. K_, Head, Records Section, Board for Correction of Naval Records, dtd November 1, 2005
Applicant ’s DD Form 214 for discharge of May 18, 2005
Applicant ’s DD Form 214 for discharge of December 18, 2001
Evaluation Report and Counseling Record, dtd September 30, 2004
Evaluation Report and Counseling Record, dtd June 10, 2003
Evaluation Report and Counseling Record, dtd February 18, 2003

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PART II - SUMMARY OF SERVICE

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

         Inactive: USNR (DEP)     20000131 - 20000320       COG
         Active: USN      20000321 - 20011218       HON
         Inactive: USNR (DEP)      2002 0430 - 20020617      COG
         Active: USN      20020618 - 20040616      HON

Period of Service Under Review :

Date of Enlistment: 20040617              Date of Discharge: 20050518

Length of Service (years, months, days):

         Active: 00 11 02
         Inactive: None

Time Lost During This Period (days):

         Unauthorized absence: None
         Confinement:              None

Age at Entry: 29

Years Contracted: 6

Education Level: 12                                 AFQT: 66

Highest Rate: MA2

Final Enlisted Performance Evaluation Averages * (number of marks):

Performance: 3 . 5 ( 2 )                        Behavior: 3.5 (2)                 OTA: 3.36

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 Medal; S ea Service Deployment Ribbon , Expert Pistol Ribbon

* Averages partially extracted from evaluation submitted by Applicant

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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 :

040617 :  Reenlisted this date for a term of 6 years.

041206:  Director, Department of the Navy, Central Adjudication Facility , lette r informed Applicant of intent to deny security clearance. [ Enclosures to the letter were not found in service record. ]

050321 :  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of defective enlistment s and inductions – fraudu lent entry into naval service.

050321 :  Applicant advised of rights and having consulted with counsel, elected to obtain copies of the documents used to support the basis for the separation and to submit a statement .

050331 :  Command er , Fleet Activities, Sasebo, Japan, recommended Applicant ’s discharge with a general (under honorable conditions) character of service by reason of fraudulent entry into the naval service. Involvement with civil authorities: “ Enclosure (2) is a security background check completed for the purpose of granting Petty Officer M_(Applicant) his security clearance revealed the following involvement with civilian authorities not disclosed at time of his enlistment into the U.S. Navy.
(1) In 1995, Petty Officer M_(Applicant) accrued not less than five guilty verdicts rendered against him for offenses including possession/distribution of narcotics, burglary, and trespassing, resulting in fines of more than $1,200.00, a part of which remains unpaid.
(2) Undisclosed and unresolved financial considerations that were Petty Officer M_(Applicant)’s obligation to report to the Navy upon his enlistment. ”
Command er ’s comments: “ (1) Petty Officer M_( Applicant ) failed to fulfill his lawful obligation to disclose his criminal and financial history at the time of his enlistment into the U S Navy. Petty Officer M_( Applicant ) made a conscious decision to conceal information when completing his SF 86 and speaking with recruiters, which included convictions for drug offenses. Had he been forthright and honest, he would not have been allowed to join the Navy. His performance of duty since his enlistment is admirable, but does not excuse behavior which clearly demonstrates an inherent lack of Navy Core Values .
(2) In his letter enclosure (3) Petty Officer M_( Applicant ) states that he was granted amnesty for his defective enlistment while serving on board the USS HAYLER (DDG 997). Reference (a) outlines procedures for obtaining a waiver for defective enlistments, which includes documentation provided by a General Courts-Martial Convening Authority. As near as this command can determine, no such waiver has been granted and no documentation exists in the record to suggest that any such procedure was conducted. During his first enlistment, Petty Officer M_( Applicant ) did complete a “Clean Slate” Disclosure Record (NAVCRUIT 1133/67), enclosure (4), in which he was again offered an opportunity to reveal his criminal convictions and he again chose deception over honesty.
(3) In recognition for service completed, and with respect to the Honorable Discharge Petty Officer M_( Applicant ) received from his first enlistment in the Navy, it is my recommendation that he be discharged for fraudulent entry into the naval service with a characterization of General (Under Honorable Conditions) with a reenlistment code of RE-4. ”

050408 :  Commander, U.S. Naval Forces, Japan, directed the Applicant 's discharge with a general (under honorable conditions) character of service by reason of fraudulent entry into military.

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PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20050518 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 records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).

When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. A general 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. For separations by reason of defective enlistment and induction due to fraudulent entry, MILPERSMAN 1910-306 stipulates that preservice activities may be considered in the characterization of a member’s service. The Applicant was separated by reason of defective enlistment and induction due to fraudulent entry due to the Applicant’s failure to disclose prior arrests or convictions for possession and distribution of narcotics, burglary and trespassing. 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 and falls far short of that required for an upgrade of his characterization of service. Relief is not warranted.

The Applicant contends that he was discharged for “charges [he] faced over 10 years ago.” The Applicant further contends that the criminal history which formed the basis for his separation were “cleared” during his first enlistment. Additionally, the Applicant implies that, during processing for his second enlistment, the Applicant’s recruiter informed him that he should not disclose the incidents which formed the basis for his discharge since the Applicant had not “gotten into any trouble” since being previously discharged. T he Applicant also contends that, during his assignment to Naval Station Bremerton, an “investigator... looked into the matter and [ the Applicant ] was again cleared.” Neither the evidence of record, nor the documents submitted by the Applicant, demonstrate that the Applicant did not falsely repr esent or deliberately conceal qualifications or disqualifications prescribed by law, regulation or orders during the enlistment process . The Applicant’s record of service contains no waivers, investigations or other documentation that would suggest the Applicant’s pre-service involvement with civilian authorities was disclosed at the time of the Applicant’s enlistment. Relief denied.

The Applicant requests that his discharge be upgraded because he has a family to support. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits or enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. 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), 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 .


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