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NAVY | DRB | 2010_Navy | ND1000810
Original file (ND1000810.rtf) Auto-classification: Denied

ex-AN, USN
Current Discharge and Applicant’s Request
Application Received: 20100127
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request:      Characterization change to:      
         Narrative Reason change to:       TO ENTER B ACK IN THE MILITARY

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        20070104 - 20070205     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20070206     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20070403      Highest Rank/Rate: AN
Length of Service : Y ear ( s ) M onth ( s ) 28 D a y ( s )
Education Level:        AFQT: 69
Evaluation M arks:         Performance: NOB          Behavior: NOB    OTA: NOB

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 administrative error(s) on the original DD Form 214:

          “ FRAUDULENT ENTRY (DRUG ABUSE) ”
        
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:           Rehabilitation/Treatment:                  Criminal Records:       
         Personal Documentation :           Community Service:                References:     
         Department of VA letter:                  Oth er Documentation:    
                  Additional Statements :
         From Applicant:            From /To Representation:            From /To Congress m ember :        




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.        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.

2.       Decisional issues : T he Applicant contends that was young and immature at the time of his enlistment and lied to the Naval Recruit Training Command in order to be separated from the Navy. T h e Applicant wishes now to serve his country in the Army; as such, he is seeking an upgrade in the characterization of his service to Honorable along with a corresponding change in his narrative reason for separation to any reason that will facilitate reentry in the service.
Decision

Date: 20 1 1 0331    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 NDRB presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant provided no additional documentation to rebut the presumption of regularity or to document his issues . The Applicant identified one decisional issue for the NDRB’s consideration. Additionally, t he NDRB completed a thorough review of the circumstances that led to the discharge, and the discharge process, to ensure the discharge met the pertinent standards of both propriety and equity.

 The Applicant enlisted into the Naval S ervice on a four -year contractual agreement with a n Aviation Maintenance Apprentice Program guarantee. Upon enlistment processing, the Applicant required no waiver to any enlistment qualification standards. Furthermore, the Applicant completed the Navy Illicit Behavior Screening Certification on 04 January 2007 , attesting to the fact that he had no history of illegal drug use prior to his enlistment; he further re- certified this fact at the Military Entrance Processing Station on the date of his enlistment on Active Duty . The Applicant ’ s service record documents that he completed basic recruit training and was pending assignment to his formal school for continued training per his contractual agreement . T he Applicant’s service record includes a formal counseling entry regarding his separation from the U.S. Navy due to legal issues.

The Applicant was screened and afforded numerous opportunities to divulge , truthfully , the details of his background – both before enlisting, while at the Military Entrance Processing Station, and at recruit training during the “Moment of Truth.” Based on the narrative reason for separation on the Applicant’s Form DD-214, the Applicant divulged a history of unreported disqualifying pre-service drug abuse; the command opted not to seek a waiver for retention from the Commander, Nav y Personnel Command and instead chose separation from the Naval Service. The Applicant was recommended for administrative separation pursuant to Article 1910-134 of the Naval Military Personnel Manual (MILPERSMAN), Separation by R eason of Defective Enlistment and Induction - Fraudulent Entry Into the Naval Service , Drug Abuse . The Separation Authority reviewed the recommendation for propriety and equity and determined that separation was appropriate and was warranted. He directed the Applicant be separated pursuant to Article 1910-134 of the MILPERSMAN and that the Applicant’s characterization of service at discharge be U ncharacterized due to having served less than 180 days of continuous active duty service.

: (Nondecisional) - 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. The NDRB cannot upgrade discharges to former service members solely to aid them in reenlisting or to improve employment opportunities or because a specified period of time has elapsed. 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 propriety warrant such change.


The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces and is prohibited from changing a reenlistment code. Neither a less than fully honorable discharge, nor an unfavorable "RE" code are, in themselves, bars to reenlistment; a request for waiver of conditions may be submitted through a recruiter during the processing of a formal application for enlistment. Only the Board for Correction of Naval Records can make changes to reenlistment codes. The Applicant may petition the Board for Correction of Naval Records, 2 Navy Annex, Washington, DC 20370-5100, using DD Form 149 to address reenlistment code issues. Accordingly, these issues do not serve to provide a foundation upon which the NDRB can grant relief.
: (Decisional) ( ) . The Applicant was discharged by reason of fraudulent entry into military service. In accordance with the MILPERSMAN, a member may be separated for effecting a fraudulent enlistment by falsely representing or deliberately concealing any disqualifications from service enlistment . An enlistment, induction, or period of service is fraudulent when there has been deliberate material misrepresentation, including the omission or concealment of facts, which, if known at the time, would have reasonably been expected to preclude, postpone, or otherwise affect the Sailor’s eligibility for enlistment or induction. Based on the Applicant’s divulging a history of unreported pre-service drug abuse, he was processed for a fraudulent enlistment. Pre-service drug use requires a waiver to enlistment standards; failing to divulge these facts during the enlistment process was a deliberate misrepresentation that, if known at the time of enlistment, may have otherwise delayed, precluded, or postponed his enlistment.

The Applicant now contends that he d id not abuse drugs prior to his enlistment and stated these facts only to avoid completion of his required contractual obligation with the Navy. The Applicant provided no documentation to support his contention or to overcome the NDRB’s presumption of regularity in governmental affairs. The Applicant officially attested to his undisclosed pre-service drug use ; accordingly, he was processed for discharge after the command decided not to seek a waiver for his retention on active duty. Moreover, t he Applicant makes no contention that he wanted and sought separation from the service.

The command did not pursue a punitive dis charge for violation of Article 83 (Fraudulent enlistment) of the UCMJ, but opted instead for the more lenient entry-level administrative separation for Fraudulent Enlistment or Induction. I n accordance with the MILPERSMAN, separation initiated while a member is within the first 180 days of continuous active duty will be described as an entry-level separation, except when the characterization of service as Under Other Than Honorable Conditions is authorized, or Honorable is clearly warranted. The Applicant had no other misconduct to warrant an U nder O ther T han H onorable discharge, and there was no evidence of unusual circumstances involving personal conduct and performance that would merit an Honorable characterization requiring approval by the Secretary of the Navy. Since the Applicant had served only 1 month and 28 days of continuous active military service at the date of discharge , an Uncharacterized discharge is considered the most appropriate characterization of service.

Given the facts and omissions involved, and the attestation of the Applicant that he abused illegal drugs , the NDRB determined that the narrative reason for separation and the awarded characterization of service w as both proper and equitable . Furthermore, it was equitable and consistent with those discharged under similar circumstances. Accordingly, the NDRB determined that a change would be inappropriate; relief, as requested, is denied.

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 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 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

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