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NAVY | DRB | 2007_Navy | ND0700553
Original file (ND0700553.rtf) Auto-classification: Denied
ex-MU3, USN
ND07-00553
Current Discharge and Applicant’s Request
Application Received: 20070320   Characterization Received:
Narrative Reason: FRAUDULENT ENTRY INTO MILITARY SERVICE Authority: MILPERSMAN 1910-134

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. Reenlistment Opportunities
                           2. Employment Opportunities
                           3. Characterization of Service and reenlistment code is not justifiable as the recruiter told the Applicant not disclose a suspended driver’s license at the time of enlistment.

Decision

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

Date: 20 071115 Location: Washington D.C          R epresentation :

Discussion

 Issues 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 Applicant contends , based on his recruiter’s re commendation, not to disclose that he had a suspended license during his enlistment process . Later, the Applicant was processed for separation based on not disclosing information concerning the suspended license. The Applicant’s service records were incomplete and therefore the Board presumes regularity in the affairs of the government. However, the Board was able to determine that the Applicant was the subject of $2,600.00 in unpaid traffic tickets in addition to his suspended license. T he evidence of record does not demonstrate that the Applicant was not responsible for h is conduct or that he should not be held accountable for h is actions . Fraudulent Enlistment is a violation of the Uniform Code of Military Justice (UCMJ) , Article 83 . Violation of the UCMJ, Article 83, is considered a serious offense for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial. An upgrade to honorable and wo uld be inappropriate .

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries , Discharge Process and evidence submitted by the Applicant, the Board found that



Summary of Service

Prior Service:
 Inactive: US N R (DEP)      19980930 - 19981027              Active:          19880718-19930717
Period of Service Under Review:
 Date of Enlistment: 19981028               Years Contracted : ; Extension:          Date of Discharge: 19981125
Length of Service: 00 Yrs 00 Mths 28 Dys         Lost Time: Days UA: Days Confined:
Education Level:         Age at Enlistment:       AFQT: 36          Highest Rank /Rate : MU3
Evaluation marks (# of occasions):       Performance: N/A          Behavior: N/A              OTA: N/A
Awards and Decorations ( per DD 214): GCM , SSDR (2), NDSM, SASM (3), KLM, NER, US CENCOM LOC, NUC


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

 19981120:        Separation Recommendation from Commanding Officer, TPU to NPC 83. Comment of the Commanding Officer: Applicant has been driving on a suspended license and ha s $2,600 in unpaid traffic tickets. Applicant has not potential for further naval service.

Discharge Process

 Date Notified:                                       NOT FOUND IN RECORD
Reason for Discharge:     - EVIDENCED BY SUSPENDED DRIVER’S LICENSE AND MULTIPLE UNPAID TRAFFIC TICKETS
        
Least Favorable Characterization:       

Date Applicant Responded to Notification:                  NOT FOUND IN RECORD
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                        
         Administrative Board                       
         GCMCA review                               

Commanding Officer Recommendation (date):       
Separation Authority (date):     COMMANDING OFFICER, TRANSIENT PERSONNEL UNIT PUGET SOUND ( 19981120 )
 Reason for discharge directed:  -
Characterization directed:     
Date Applicant Discharged:       19981125


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) Drivers License, Social Security Card, VFW Certificate
Pertinent Regulation/Law

 A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 Dec 97 until 2 Feb 01, 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 .

C. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 83.

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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