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NAVY | DRB | 2009_Navy | ND0901068
Original file (ND0901068.rtf) Auto-classification: Denied

ex-ATAN, USN
Current Discharge and Applicant’s Request
Application Received: 20090318
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN [FRAUD ENTRY INTO MILITARY SERVICE]

 Applicant’s Request: Characterization change to:
                  Narrative Reason change to:

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        20060810 - 20060925     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20060926     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20081229      Highest Rank/Rate: ATAN
Length of Service : Y ear ( s ) M onth ( s ) 04 D a y ( s )
Education Level:        AFQT: 89
Evaluation M arks:         Performance: 4.0 ( 1 )      Behavior: 4.0 ( 1 )        OTA: 3.67

Awards and Decorations ( per DD 214):     

Periods of UA /C ONF :

NJP :
- 20070308 :       Art icle 92 (Failure to obey order or regulation)
         Awarded : Susp ended : FOR 1 MONTH

S CM :    SPCM:    C C :

Retention Warning Counseling :

Types of Documents Submitted/reviewed

 Related to Military Service:     
DD 214:                   Service/ Medical Record:          Other Records:   

Related to Post-Service Period:  
         Employment:               Finances:                 Education /Training :     
         Health/Medical Records:           Substance Abuse:                  Criminal Records:       
         Family/Personal Status:           Community Service:                References:     
Additional Statements :
 From Applicant:                  From /To Representat ion :            From /To Congress m ember :         

Oth er Documentation :   

Applicant Testified:
Applicant Available for Questions:
Witnesses:
Observers:


Pertinent Regulation/Law

 A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 22, effective 16 May 2008 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 II, Para 211, Regularity of Government Affairs , Part V, Para 502, Propriety and Para 503, Equity .



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

Applicant’s Issues

 1.       Misled by recruiter.
2.       In-service performance.
3.       Post-service performance.

Decision

 Date: 20 1 0 106              Location: Washington D.C .        R epresentation :

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

Discussion

 The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of g overnment al affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s record of service included nonjudicial punishment (NJP) for o f the Uniform Code of Military Justice (UCMJ): Article 92 ( Failure to obey a order or regulation – providing alcohol to a minor ) . Additionally, the Applicant’s DD Form 214 reflects that the Applicant was separated due to fraudulent entry into the naval service and assigned a separation code of “JDA” indicating the Applicant was not entitled to an administrative board. The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived right s to consult with qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority Review. A presumption of regularity of governmental affairs was applied in the absence of the administrative separation package.

: (Decisional) ( ) . The Applicant appeared before the NDRB without representation contending that her narrative reason should be changed to erroneous because she was misled by her recruiter.
 Pursuant to Military Personnel Manual 1910- 134 members may be separated for effecting a fraudulent enlistment, induction, or period of service by falsely representing or deliberately concealing any qualifications or disqualifications prescribed by law, regulation or order. The evidence of indicates the following: 1) the Applicant signed a background statement of understanding indicating that she understood that total honesty is essential when answering questions on the background investigation form and that the U. S. Navy may not be able to trust her if she is not totally honest when answering questions on her background check; 2) she completed a Waiver Briefing Sheet, NAVCRUIT 1133/39 and failed to list her arrest and imprisonment in an Ecuador prison in the section entitled “Civil/Criminal/Police offenses ”; 3) she completed the Introductory Pre - accession Interview which notes that if your s ervice discovers disqualifying information after your enlistment, a court-martial for fraudulent enlistment may result , and indicated that she had told her s ervice counselor everything about illegal us e , possession, or sale of drugs and any problems she had with law enforcement agencies; and 4) on 10 August 2006 she signed a Moment of Truth Statement of Understanding indicating that she understood that after enlisting she could be subject to fines, imprisonment and involuntary discharge for disclosing information not listed in her enlistment record, that she had been advise d to list all civil involvement , drug usage, prior service information, she would be investigated and no matter what anyone has told her no t to mention, she must report any information that she has not already told the Navy. Despite signing numerous official records pertaining to the disclosure of pre-service involvement with civil authorities , the Applicant failed to disclose her imprisonment for drug trafficking. The Applicant submitted an affidavit and also testified that 1) a t the age of 16 she w as awarded a Rotary exchange student scholarship to Ecuador , 2) during her stay in Ecuador , she met an Ecuadorian man who convinced her to move in with him, 3) shortly before her eighteenth birthday she was arrested by Ecuadorian police, along with her fiance on charges of drug trafficking and was jailed for four years, 4) after being released from jail she lived with her fiance for approximately five months and then returned to the United States, 5) she later decided to join the Navy and met with a recruiter who allegedly told her that it was up to her to tell him what happened to her while overseas, 6) she indicated that she decided not to disclose her arrest and imprisonment Ecuador because she thought her receipt of a three - year degree in an Ecuadorian university would account for her time there and she rationalized that she had been unfairly imprisoned by a corrupt judicial system, 7) after receiving a secret security clearance from the Navy and while on leave she spent the day in Canada with her sister and when they returned to the United S tates she was detained by the U.S. Border Patrol because of irregularities in her passport, and 8) the matter was turned over to Navy Criminal Investigations Unit who investigated the matter, discovered her jail time, and turned it over to her commanding officer who processed her out of the Navy

There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that the recruiter misled her through the recruitment process. T o the contrary, the Applicant admitted that she deliberately failed to disclose to the recruiter that she had been charged for drug trafficking and had served a sentence of four years in an Ecuadorian prison . The Applicant’s contention that she was misled by the recruiter is refuted by the overwhelming weight of evidence in the her service record which indicates that she was aware that the withholding of information pertaining to her pre-service involvement with civil authorities was a matter of trust and could result in fines, imprisonment, and involuntary discharge regardless of what anyone told her, yet the Applicant refused to disclose this information . However, even if the Applicant could show misrepresentations in the recruitment process, such misrepresentations would neither amount to a justification nor to a defense for the Applicant’s own misconduct. The Board determined the Applicant’s conduct, which forms the primary basis for determining the character of h er service, reflected a significant departure from the conduct expected of a service member and there was sufficient evidence to support a basis for discharge due to fraudulent enlistment .

Issue 2: (Decisional) ( ) . The Applicant also requested an upgrade to Honorable based on her in-service performance. Based on the record of evidence and testimony of the Applicant, she had one NJP for providing alcohol to a minor during the two years that she was on active duty. Th is is considered a serious offense which could have resulted in a punitive discharge and confinement if adjudicated and awarded as part of a sentence by a special or general court martial. The command did not refer the Applicant for a court martial but opted instead for an administrative discharge. Based on the offense committed, length of service and facts and circumstances unique to this case, the Board determined that an upgrade is not warranted and the Applicant’s in-service performance was insufficient to justify an upgrade .

Issue 3: (Decisional) ( ) . The Applicant also requested an upgrade in the characterization of her discharge based on post– service conduct but has submitted no documentation of post-service accomplishments for the Board’s consideration. The Applicant testified that she has not worked since her separation from the military but has married a Navy veteran, completed a master’s degree program and is currently working on another degree. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. Outstanding post-service conduct, 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, is considered during Board reviews. Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle. The Applicant is advised that each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate in-service misconduct was an aberration and not indicative of the member’s overall character.

While the Board app reciates the Applicant’s post-service efforts, t he Board determined the Applicant’s statement regarding post-service conduct without supporting documentation was not sufficient to form a basis of relief. On page 4, Item 8, i n the instructions for completion of DD Form 293, the Applicant is notified to submit evidence “which substantiate s or relate s directly to your issues in Item 6.” (Issues: Why an upgrade or change is requested and justification for the request). Additionally, upon receipt of the Applicant’s DD Form 293 , the NDRB mails an acceptance letter that includes the Information Concerning Review Procedures , which discusses the submission of additional documents in paragraph 3, Submission of Evidence, and in the last section on page 4, Information Pertaining to a Review Based Upon Post-Service Conduct . However, even if the Applicant could have produced additional evidence to support a review based on his post-service conduct, the Applicant should be aware that post-service conduct alone does not guarantee an upgrade.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries, and d ischarge p rocess, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain .


ADDENDUM: Information for the Applicant

 Complaint Procedures : If you believe 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 : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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. There are veterans organizations such as the American Legion and the Association of Service Disable Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade. If a former member has been discharged for more than 15 years, has already been granted 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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. 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.
Employment/Educational Opportunities : The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the NDRB’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 BCNR can make changes to reenlistment codes. Additionally, the NDRB 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, 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 other medical related reasons. Only the BCNR can grant this type of narrative reason change.

 Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

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 special 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. The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership: The names and votes of the members of the NDRB 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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