Search Decisions

Decision Text

NAVY | DRB | 2009_Navy | ND0902527
Original file (ND0902527.rtf) Auto-classification: Denied
ex-SR, USN
Current Discharge and Applicant’s Request
Application Received: 20090915
Characterization of Service Received:
Narrative Reason for Discharge: FRAUDULENT ENTRY
Authority for Discharge: MILPERSMAN

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

Summary of Service
Prior Service:
Inactive:         US N R (DEP)        20061026 - 20061120     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20061121     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20070118      Highest Rank/Rate: SR
Length of Service : Y ear ( s ) M onth ( s ) 28 D a y ( s )
Education Level:        AFQT: 61
Evaluation M arks:         Performance: NFIR         Behavior: NFIR   OTA: NFIR

Awards and Decorations ( per DD 214):      NONE

Periods of UA /C ONF :     NJP :     S CM :    SPCM:    C C :

Retention Warning Counseling :

Administrative Corrections to the Applicant’s DD 214

The NDRB did note an administrative error on the original DD Form 214:

         “ FRAUDULENT ENTRY ”
        
The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate.
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 :   

Pertinent Regulation/Law
A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 3 May 2005 until 16 May 2008, 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.        Applicant desires upgrade to re-enlist in the Navy.
2.       Applicant contends things he said or did were taken out of context , which formed the basis for his discharge.
 3 .       Applicant contends that his discharge was improper since he had no previous medical or mental problems.
4 .       Applicant contends that his discharge due to pre-service drug abuse was improper .

Decision

Date: 20 10 1014             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 discharg e 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 identif ied three decisional issues for the Board’s consideration . T he Board complete d a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. Due to his total length of service (1 month, 28 days) and type of discharge (entry level separation), the Applicant’s record of service did not include any NAVPERS 1070/613 (Page 13) warnings , non-judicial punishments , or trials by court-martial . Furthermore, the record lacks documentation that explains the specific reasons behind the Applicant’s separation while at recruit training. The Applicant’s DD-214 specifies “ Fraudulent Entry Into Military Service ” as the narrative reason behind his separation, and references MILPERSMAN section 1910-134 as the separation authority , which details the conditions in which a service member shall be separated for fraudulent enlistment into the naval service. Per the applicable regulations, the Recruit Training Center administratively processed for entry level separation (less than 180 days of active duty service) . The NDRB did not have the Applicant’s administrative separation package to determine whether or not the Applicant waived exercised or waived his rights to consult with a qualified counsel, submit a written statement of rebuttal , and request a General Court-Martial Convening Authority review .

The Applicant provided additional documentation that included three letters of recommendation . He provided no other documentation in addition to his DD-293 Application for Review. Submission of these items alone does not guarantee an upgrade in characterization as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service conduct mitigates the reason for the characterization of discharge.

: (Nondecisional) The Applicant desires an upgrade to re-enlist in the Navy. 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 B oard for Correction of Naval Records 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.

 Issues 2-3 : (Decisional) ( ) . The Applicant contends things he said or did , which formed the basis for his discharge, were taken out of context and that his discharge was improper since he had no previous medical or mental problems. The Applicant was discharged by reason of fraudulent entry into military service. Members may be separated for effecting a fraudulent enlistment by falsely representing or deliberately concealing any service disqualif ying factors. The Applicant c laims he had no pre-existing medical or mental health issues prior to enlisting and that unspecified actions or statements he made were taken out of context and u sed t o warrant his entry level separation. In reviewing discharges, the government presumes regularity in the conduct of its affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant . The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention the command treated him unfairly or not in accordance with governing regulations .

The Board note d that the Applicant had no misconduct that would rate an Under O ther Than Honorable Conditions discharge , and there w as no evidence of unusual circumstances involving personal conduct and performance of military duty that would merit an Honorable c haracterization , which is approved on a case-by-case basis by the Secretary of the Navy. Per the Navy Military Personnel Manual (MILPERSMAN), the Applicant warranted an entry level separation (less than 180 days active service) with a required character of service as Uncharacterized . W ith respect to nonservice-related administrative matters, i.e., Departme nt of Veterans Affairs benefits or civilian employment, an Uncharacterized separation is considered the equivalent of an Honorable or General (Under Honorable Conditions) characterization.

Issue 4 : (Decisional) ( ) . The Applicant contends that his discharge due to pre-service dru g abuse was improper. The Board noted that the service record reflected no pre-service admission of illegal drug use by the Applicant during his processing for enlistment n or documentation of a pre-service drug waiver. Without the Applicant’s administrative separation package documentation available, the Board presumes regularity in the condu ct of government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention the command treated him unfairly or not in accordance with the applicable orders, directives, and regulations at the time of discharge .

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

The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge. The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct .


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 Disabled American 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 their 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.

Post-Service Conduct : 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 completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as 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.

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

Similar Decisions

  • NAVY | DRB | 2015_Navy | ND1500410

    Original file (ND1500410.rtf) Auto-classification: Denied

    The Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 3 May 2005 until 16 May 2008, Article 1910-134, Separation by Reason of Defective Enlistments and Inductions - Fraudulent Entry Into the Naval Service. ” 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. Additionally, the NDRB does not...

  • NAVY | DRB | 2010_Navy | ND1000810

    Original file (ND1000810.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.Nondecisional issues: The Applicant seeks an upgrade in his discharge characterization and change in narrative reason for separation in order to reenlist in the United States Army. Rather, the NDRB examines the propriety and the equity of an Applicant’s discharge and is authorized to change the characterization of that service or the reason for discharge if factors of equity or...

  • NAVY | DRB | 2006_Navy | ND0601040

    Original file (ND0601040.rtf) Auto-classification: Denied

    ex-MMFN, USNND06-01040Current Discharge and Applicant’s Request: Application Received: 20060803Narrative Reason for Separation: IN LIEU OF TRIAL BY COURT MARTIAL Character of Service: Discharge Authority: MILPERSMAN3630650Last Duty Assignment/Command at Discharge: USS LASALLE (AGF-3)Applicant’s Request:Characterization change to: GENERAL (UNDER HONORABLE CONDITIONS), ENTRY LEVEL SEPARATIONNarrative Reason change to:NONE REQUESTEDReview Requested:Representation: Decision: Date of...

  • NAVY | DRB | 2015_Navy | ND1500703

    Original file (ND1500703.rtf) Auto-classification: Denied

    Administrative Corrections to the Applicant’s DD 214Types of Documents Submitted/reviewedRelated to Military Service: DD 214: Service/Medical Record: Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical Records: Rehabilitation/Treatment: Criminal Records: Personal Documentation: Community Service: References: Department of VA letter: Other Documentation: Additional Statements: From Applicant: From/To Representation: From/To Congress member:...

  • NAVY | DRB | 2015_Navy | ND1500553

    Original file (ND1500553.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. 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...

  • USMC | DRB | 2015_Marine | MD1500356

    Original file (MD1500356.rtf) Auto-classification: Denied

    Based solely on the Applicant’s self-referral for treatment, the Separation Authority may not use the Applicant’s drug abuse in the determination of the Applicant’s characterization of service. Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries and discharge process, the Board found Therefore, the awarded characterization of service shall change to GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for...

  • NAVY | DRB | 2010_Navy | ND1000451

    Original file (ND1000451.rtf) Auto-classification: Denied

    The Applicant’s separation did not warrant the right to elect an administrative hearing board.The Applicant was recommended for administrative separation pursuant to Article 1910-134 of the Naval Military Personnel Manual (MILPERSMAN), Separation by Reason of Defective Enlistment and Induction - Fraudulent Entry Into the Naval Service. The Applicant was seen by a medical officer and evaluated for enlistment; the Medical Officer’s report, and the Applicant’s provided medical background...

  • USMC | DRB | 2010_Marine | MD1000070

    Original file (MD1000070.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues The Applicant seeks appropriate relief by a change to his characterization of service to Honorable and a narrative reason for separation change to “Defective Enlistment” or ‘Fraudulent Entry into Military Service. Therefore, under equity, the Applicant should have been separated for erroneous enlistment or fraudulent enlistment and that his service was honorable; as such, the...

  • NAVY | DRB | 2015_Navy | ND1500285

    Original file (ND1500285.rtf) Auto-classification: Denied

    Based on the the discovery of several disqualifying mental health conditions in his pre-enlistment medical record, none of which were disclosed during the enlistment process, command administratively processed for separation. Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall remain UNCHARACTERIZED (ENTRY LEVEL SEPARATION)...

  • NAVY | DRB | 2012_Navy | ND1201037

    Original file (ND1201037.rtf) Auto-classification: Denied

    Types of Documents Submitted/reviewedRelated to Military Service: DD 214:Service/Medical Record:Other Records: Related to Post-Service Period: Employment: Finances: Education/Training: Health/Medical Records: Rehabilitation/Treatment: Criminal Records: Personal Documentation: Community Service: References: Department of VA letter: Other Documentation: Additional Statements:From Applicant: From/To Representation:From/ToCongress member: DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD...