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NAVY | DRB | 2007_Navy | ND0700241

Original file (ND0700241.rtf) Auto-classification: Denied

ex-HN, USN
ND07-00241

Current Discharge and Applicant’s Request

Application Received: 20061220 Characterization Received:

Narrative Reason: FRAUDULENT ENTRY INTO NAVAL SERVICE Authority: MILPERSMAN 1910-1034

Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. VA Benefits
2. Correct DD-214 to show money paid into the Post Vietnam Era Veterans Education Assistance Program.
3. Post Service.

Decision

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall FRAUDULENT ENTRY .

Date: 20 070927 Location:         Washington D.C. The Board found that

Discussion

Issue(s) 1 - 2 : either which the Board cannot form the basis of relief for the Applicant, or the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum regarding .

Issue 3: ( ). The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the civilian life subsequent to leaving the service. Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, 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, is considered. The Applicant did not provide any statement s of post-service accomplishments. The Applicant's efforts need to be more encompassing. For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, evidence of drug free existence, evidence of financial responsibility, and certification of non-involvement with civil authorities. The Board determined that the documentation provided by the Applicant did not mitigate the misconduct that resulted in the characterization of discharge.

Summary of Service

Prior Service:
Inactive: US N R (DEP)      20000926 - 20001030              Active:
Period of Service Under Review:
Date of Enlistment: 20001031      Years Contracted : ; Extension:          Date of Discharge: 20021216
Length of Service : 02 Yrs 01 Mths 15 D ys          Lost Time : Days UA: Days Confine d :
Education Level:         Age at Enlistment:       AFQT: 64          Highest Rank /Rate : HN
Evaluation marks (# of occasions):       Performance: 4.0 ( 1 )       Behavior: 3.0 ( 1 )          OTA: 3.17
Awards and Decorations ( per DD 214): NATIONAL DEFENSE SERVICE MEDAL

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

PERSONAL CONDUCT; CRIMINAL CONDUCT

19980213         A civil complaint was filed against you stating you owed complainant $1,000.00. On 17 April 1998, a judgment for complainant was granted. Record reflect s you did not respond or appear in court and there is no indication if the judgment was paid.

19980325         A civil complaint was filed by complainant stating she wanted possession of the property, rent due in the amount of $300.00, plus payment for water and garbage service. Judgment order granting summary relief for wrongful occupation of residential rental property was made on 1 April 1998 and a judgment for the plaintiff in the amount of $300.00 with interest was issued. Record did not reflect if this judgment was paid.

PERSONAL CONDUCT; FINANCIAL CONSIDERATION :

20001116:        On your SF 86, Security Clearance Application, you answered “no” to question #38 and #39, regarding delinquent debts over 90 or 180 days.

         PERSONAL CONDUCT; CRIMINAL CONDUCT :

20001116:        On your SF 86, you disclosed a speeding ticket in February 1997 and a ticket for running a red light in November 1996.

PERSONAL CONDUCT; FINANCIAL CONSIDERATION :

20010301:        Your Credit Bureau Report disclosed the following:
         * ALLTEL charged off $428.00 in July 1997.
         * Discover Card charged off an unknown amount in August 1997.
         * FFB Visa charged off $720.00 in October 1997.
         * Gulf State placed $1,552.00 for collection in March 1998.
         * LAZ/FDSNB charged off $264.00 in July 1997.
         * US Dept of Ed placed an unknown amount for collection in October 2000.
         Other Collection Accounts:
         Network VI -$67.00 filed February 1998.
         WV American - $153.00 filed April 2000 .
NCO American EL - $532.00 filed August 2000.
NCO Nokcol LLC - $1, 808 filed May 1999, current balance of $2,041.00

20010322:        CO's NJP -- Viol UCMJ Art. 86 – (2 specs) Unauthorized absence. Awarded - FOP ($486.00) for (1month); Restr for (45days) suspended for 6 months; Extra duties (45#days) suspended for 6 months.

20010322:        Retention Warning for (Unauthorized ab s ence).

PERSONAL CONDUCT; CRIMINAL CONDUCT

20010507:        Cabell County Magistrate Court records disclosed the following:
* 15 August 2000- a complaint was filed against you alleging on 14 Aug 2000, you threatened the life, job and personal property, etc. by physically holding down complainant while covering her mo u th and screaming at her. The complainant also reflects there was other violence prior to this date (NFI). On 17 August 2000, a final order was issued reflecting a 180 day restraining order. the complaint was dismissed on 26 September 2000 because no one appeared at a scheduled hearing.

                  PERSONAL CONDUCT, FINANCIAL CONSIDERATION

20011001:        During your DSS interview, you stated the following:
         * You acknowledge all debts in your credit report and stated you have not made any payments on these debts.
         * You attribute your financial situation to low paying jobs, having two children, and irresponsibility on the part of you and your wife.
         * You stated now that you are in the Navy and have somewhat established yourself, you will contact all your creditors and make arrangements for payment.
         * Your Personal Financial Statement shows a total net income of $1,900.00, totally monthly expenses of $1,405.00, no monthly debt payments, and a net remainder of $405.00.

20020911:        Navy Personnel Command ltr to Commanding Officer, Naval Hospital, Great Lakes. Member failed to disclose adverse financial information. Command must process for fraudulent entry or submit for waiver to retain.

20020930:        Ltr from DONCAF to Applicant. Intent to deny Security Clearance.

Discharge Process

Date Notified:                                       20021106
Reason for Discharge:     - FRAUDULENT ENTRY INTO NAVAL SERVICE

Least Favorable Characterization:

Date Applicant Responded to Notification:                  20021108
Rights Elected at Notification:
         Consult with Counsel
         Obtain Copies of Documents
         Submit Statement(s) (date)
         Administrative Board
         GCMCA review

Commanding Officer Recommendation (date):        N/A ( LOCAL SEPARATION )
Separation Authority (date):     COMMANDING OFFICER, NAVAL HOSPTIAL, GREAT LAKES, ILLINOIS ( 20021220 )
Reason for discharge directed: - FRAUDULENT ENTRY INTO NAVAL SERVICE
Characterization directed:
Date Applicant Discharged:       20021216

Types of Documents Submitted by Applicant and Considered By Board

Related to Military Service:      Service and/or Medical Record:          Other Records:

Related to Post-Service Period:
         Employment:                        Finances:                          Education:
         Health/Medical Records:                   Substance Abuse:                           Criminal Records:
         Family/Personal Status:                   Community Service:                References:

Additional Statements From Applicant:    From Representative:
Other Documentation (Describe)

Pertinent Regulation/Law

A. The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 25 January 2004, 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 II, Para 211, Regularity of Government Affairs , Part V, Para 502, Propriety and Para 503, Equity .

ADDENDUM: Information for the Applicant

Complaint Procedures : 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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity , OUSD (P&R) PI-LP , The Pentagon , Washington, DC 20301-4000 . You should read Enclosure (5) of the Instruction 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 Instruction 1332.28 and other Decisional Documents by going online at “ http://Boards.law.af.mil . ”

Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provi ded the 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. If a former member has been discharged for more than 15 years , has already been grante d a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits: The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

Employmen t / Educational Opportunities : The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.

Reenlistment/RE-code: Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. 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.

Medical Conditions and Misconduct : DoD disability regulations do not preclude a disciplinary separation. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record. Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or “PTSD . ” Only the Board for Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - 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 may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.

Issues Concerning Bad-Conduct Discharges (BCD ) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief. With respect to a discharge adjudged by a court-martial, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed.

Board Membership: 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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NAVY | DRB | 2007_Navy | ND0700241

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