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NAVY | DRB | 2007_Navy | ND0700898
Original file (ND0700898.rtf) Auto-classification: Denied
ex-AA, USN
ND07-00898
Current Discharge and Applicant’s Request
Application Received: 20070619   Characterization Received:
Narrative Reason: FRAUDULENT ENTRY INTO MILITARY         Authority: MILPERSMAN 1910-130

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. Wrongfully discharge d
Decision

 By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall FRAUDULENT ENTRY INTO MILITARY .
Date: 20 080110                      Location: Washington D.C          R epresentation :

Discussion

 Issue 1 ( ). Applicant alleges that he obtained a waiver to enter the military and because his command could not locate this waiver , he was unfairly discharged due to fraudulent entry into the service. The Applicant was discharged on 20040726 with a general (under honorable conditions). The Applicant’s record reflects that during his enlistment he was awarded non-judicial punishment on 20000623, 20011022 and 20011106 for VUMC, Art. (s) 86, 92, 121, and 123. Almost three years later , Commander , Naval Personnel command notified Applicant that a determination had been made that he failed to disclose criminal conduct and sexual behavior o n his SF -86 form upon enlisting into the military and that the command must initiate administrative separation processing or request a waiver . There is no documented evidence that the command request ed a waiver , nor has t he Applicant s ubmitted any documentation to support his contention that his command lost the waiver that he was granted to permit his entrance into the Navy . 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. The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package.

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

Administrative Corrections to the Applicant’s DD 214

 The NDRB did note administrative error(s) on the original DD Form 214 :

         “ 1910-134 ”
        
The NDRB will recommend to the C ommander, Navy Personnel Command, that the DD 214 be corrected as appropriate.

Summary of Service

Prior Service:
 Inactive: US N R (DEP)      19991023 - 19991103               Active:         
Period of Service Under Review:
 Date of Enlistment: 19991104      Years Contracted : ; Extension:   Date of Discharge: 20040726
Length of Service : 04 Yrs 08 Mths 22 D a ys   Lost Time : Days UA: Days Confine d :
Education Level:         Age at Enlistment:       AFQT: NOT AVAILABLE           Highest Rank /Rate : E-3
Evaluation marks (# of occasions):       Performance: 3.0 ( 5 )      Behavior: 1.60 ( 5 )        OTA: 2.67
Awards and Decorations ( per DD 214): NDSM

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

 20000623 :        NJP -- Viol UCMJ Art. 92 – Failure to obey a lawful order .
         Awarded - FOP ( $ 200 ) for ( 02 months) (suspend $200 for 1 mo) ; Restr for ( 45 days); Extra duties ( 45 days) .
 2 00 10222 :        NJP -- Viol UCMJ Art. 92 – Failure to obey a lawful general order, Art. 121-:Larceny; Art. 123 – Forgery.
         Awarded - FOP ($ 608.00 ) for ( 2 months) ( Susp $458.00) ; Restr for ( 45 days); Extra duties ( 45 days).
 2 00 11106:         NJP -- Viol UCMJ Art. 86 – Unauthorized Absence .
         Awarded - FOP ($ 585.00 ) for ( 01 month); RIR ( E-2 ); Restr for 45 days); Extra duties ( 45 days).

 20040217         Commander, Naval Personnel Command, Notice to Applicant of a determination that he failed to disclose criminal conduct and sexual behavior on the SF-86 upon enlisting and the command must began Fraudulent Enlistment Separation Processing or request a Waiver of Fraudulent Enlistment.

Discharge Process

 Date Notified:                                       UNKNOWN
Reason for Discharge:    
        
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                               
Administrative Board Date :       NOT FOUND IN RECORD
Findings, by preponderance of the evidence:     .
 Recommendation on Separation:  
Recommendation on Characterization:    
Commanding Officer Recommendation (date):       
Separation Authority ( date ):     COMCARGRU SEVEN ( 040527)
Reason for discharge directed: 
Characterization directed:     
Date Applicant Discharged:       20040726

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. Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 20 June 2005 until p resent, Article 1910- 134 , SEPARATION BY REASON OF FRAUDULENT ENTRY INTO MILITARY .

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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