Docket No: 4166-20 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF Ref: (a) 10 U.S.C. § 1552 (b) PDUSD memo, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations,” of 25 July 2018 Encl: (1) DD Form 149 with attachments (2) DONCAF letter Ser 001PI317 of 13 Aug 03 (3) Court Memorandum (4) Record of Unauthorized Absence (5) NDRB Report of 7 Apr 06 (6) Discharge Authority letter Ser 004/L0014 of 15 Jan 04 (7) letter of 22 Mar 16 (8) Petitioner’s Personal Statement (9) NPC letter of 20 May 06 (10) Reissued DD Form 214 1. Pursuant to the provisions of reference (a), Petitioner, a former enlisted sailor, filed enclosure (1) with the Board for Correction of Naval Records (Board) requesting the Board correct his Certificate of Release or Discharge from Active Duty (DD Form 214) to reflect an upgraded characterization of service and correct missing awards and training entries. 2. The Board, consisting of , reviewed Petitioner's allegations of error and injustice on 10 July 2020, and, pursuant to its regulations, determined the corrective action indicated below should be taken on the available evidence of record. Documentary material considered by the Board consisted of the enclosures, relevant portions of naval service records, and applicable statutes, regulations, and policies. 3. The Board, having reviewed all the facts of record pertaining to Petitioner's allegations of error and injustice finds as follows: a. Before applying to this Board, Petitioner exhausted all administrative remedies available under existing law and regulations within the Department of the Navy. b. Although enclosure (1) was not filed in a timely manner, it is in the interest of justice to review the application on its merits. c. Petitioner enlisted in the Navy on 28 July 2000. In October 2000, he attended Navy and Marine Corps Intelligence “A” School and, while in training, submitted the required documentation for a security clearance. After attending Basic Underwater Demolition/SEAL (BUD/S) school, Petitioner reported for duty with Sea, Air, Land (SEAL) Team in May 2002. Around November 2002, he deployed with SEAL Team to and . d. On 13 August 2003, Director, Department of the Navy Central Adjudication Facility (DONCAF), made a preliminary decision to deny Petitioner a security clearance and eligibility for access to Sensitive Compartmented Information (SCI). In its notification letter, DONCAF provided a summary of disqualifying information which was derived from his Defense Security Service Investigation of 18 March 2002. The list included behavior dating back to 1994 and conduct such as careless and imprudent driving, burglary, stealing, not wearing a seat belt, rape, minor in possession of alcohol, trespass, peace disturbance, resisting arrest, failure to appear, possession of marijuana, public intoxication, and menacing. During his August 2001 interview, Petitioner did not disclose these incidents nor did he list any of the arrests when completing the security clearance documentation. Also detailed in the notification were the results of a 9 November 2001 “Neighborhood Investigation” and information regarding financial delinquencies which Petitioner did not disclose. See enclosure (2). e. On 23 September 2003, Petitioner received nonjudicial punishment (NJP) for failure to obey an order and assault after he got into an altercation with two sailors. See enclosure (3). f. From 23 October 2003 to 3 November 2003, Petitioner was in an unauthorized absence (UA) status for which his end of active obligated service was adjusted. See enclosure (4). g. Petitioner’s record is incomplete in that it does not contain the complete documentation for his administrative separation processing. Specifically, the record does not include the administrative separation notification, the Commanding Officer’s (CO) recommendation, or the endorsement of Commander, , but the following information was derived from the Naval Discharge Review Board’s (NDRB) report. Petitioner was notified of pending administrative separation action by reason of defective enlistment and inductions due to fraudulent entry into the naval service. After Petitioner waived his procedural rights, his CO recommended an other than honorable (OTH) characterization of service by reason of defective enlistment due to fraudulent entry. The discharge authority, Naval Special Warfare Command, directed Petitioner be discharged with an OTH characterization of service by reason of misconduct due to fraudulent entry - drug abuse. Petitioner was discharged on 5 February 2004. See enclosures (5) and (6). h. Petitioner, through counsel, contends the NDRB Secretarial Review Authority (SRA) erred in not granting the relief the NDRB voted unanimously to grant. Specifically, Petitioner contends the SRA’s decision to overturn the unanimous decision of the NDRB was arbitrary, capricious, and unauthorized. Petitioner requested the Board reverse the 18 December 2019 decision of the SRA and make the NDRB’s recommendation the “final decision.” The Board exercised its authority and reviewed the case anew, considering each of the contentions from Petitioner’s initial submission to NDRB along with the contentions raised in enclosure (1), Petitioner’s current application. Specifically, the Board considered the following: 1) The characterization of Petitioner’s discharge as OTH violated due process and the Military Personnel Manual (MILPERSMAN). a) Rather than assessing the situation when he was presented with enclosure (2), the DONCAF notification, Petitioner’s CO chose to expeditiously discharge Petitioner, causing the false statements regarding Petitioner’s juvenile police record to remain unquestioned and unevaluated. Petitioner contends it was the CO’s “investigatory duty” to investigate the issues raised in the DONCAF notification. b) Because of the “rapidity of his out-processing”, Petitioner contends he did not seek legal counsel “as he believed that his senior leadership was acting on accurate information and they would not breach faith with a fellow SEAL.” c) Petitioner contends, and his former SEAL platoon commander concurs, that the true cause of Petitioner’s discharge was “due to improper guidance he received from the Navy Recruiter.” See enclosure (7). d) Petitioner contends he was advised that he would be “separated under general conditions. It wasn’t until I received my separation papers months later that I knew it was under OTH conditions.” e) Petitioner contends he was not advised, by his CO or anyone else, that under the MILPERSMAN, he had both the right to elect an administrative discharge board and the right to request a waiver to stay in the Navy. 2) Petitioner contends the continuing OTH characterization is otherwise inequitable. 3) Petitioner contends his laudable military service satisfies the prescribed standards for an upgrade to an honorable (HON) characterization of service. Specifically, he lists the following as warranting an HON discharge: a) Tour of duty with SEAL Team in which he served as the platoon Transportation Department Head responsible for the accountability, planning of trips, and maintenance of fleet vehicles. Further, he served as the Intelligence Department Head and was assigned as “point man” for 2nd squad. b) Deployed with SEAL Team to and . c) Received numerous awards, decorations, letters of commendation, and promotions which support his request for an upgrade. d) The length of his service, three years and 11 months, supports his request for an HON characterization of service. 4) Petitioner contends his post-discharge career warrants an upgrade to his characterization of service. Specifically, he lists the following: a) Founding President of “” which recently received its 501c3 designation. Over the past four years, Petitioner has led the fundraising effort and raised $409,000 for veteran suicide awareness and in support of Operation Restored Warrior (ORW) and other Veterans-focused charities. has donated 100% of its profits to ORW, Homefront K9, SEAL Kids, and Purple Heart Homes. b) Successful career in the culinary industry resulting in a quick rise to the leadership position of banquet chef and working side-by-side with some of the best chefs in . c) In 2009, began work at “5325 Solutions” a full-spectrum warrior training program which provides instruction to include teaching small arms tactics to law enforcement officers, military personnel, and qualified civilians. d) Started his own business, , Inc., which focuses on the community in which he lives and provides practical applications of firearms for the average citizen, to include personal security plans. e) Travels the country making presentations to business teams, college teams, and high school teams. f) Team member of , a faith-based group of veterans who specifically target the men returning home that are on the verge of suicide. 5) In support of his contentions, Petitioner provided more than a dozen advocacy letters detailing his in-service and post-service dedication, expertise, and integrity. See enclosure (1). 6) In the personal statement submitted with enclosure (1), Petitioner provided his personal explanations of the criminal allegations contained in enclosure (2), DONCAF’s notification letter. Petitioner contends he left out the information when applying for his security clearance and eligibility for access to SCI because his “recruiter told me to leave out the information when I enlisted.” See enclosure (8). Specifically, with regards to the possession of marijuana charge, which appears to be the basis of his discharge due to fraudulent entry, Petitioner contends he was not officially charged with possession of marijuana but the people he was with “had weed on them” so “everyone was charged.” He further contends he did not “spend 730 days in jail.” 7) Petitioner’s counsel contends that in his “extensive military service, he has observed that it is common for enlisted personal to have a personnel or security clearance specialist review security clearance applications prior to submission.” Petitioner contends “no one took the time to assure his security clearance forms were properly completed” or to ensure that he “understood the questions appearing in the forms.” 8) Petitioner contends his NJP resulted from an altercation in a bar in which involved two sailors who “wanted to see if they could beat up a SEAL.” Petitioner contends he ignored the sailors until one of the sailors touched him from behind resulting in Petitioner defending himself. Petitioner also explains the orders violation was due to the van that transported him to the bar being a vehicle that was not authorized to leave the base. i. In its April 2006 decision, NDRB noted administrative errors on the original DD Form 214 and directed Navy Personnel Command (NPC) to correct the errors. On 20 May 2006, NPC issued a new DD Form 214. Petitioner contends the new DD Form 214 contains errors. Specifically, the new DD Form 214 does not include reference to his earned National Defense Service Medal in block 13, his “nearest relative” in block 19b, and a complete listing of schools and military training in block 14. See enclosures (5), (9) and (10). CONCLUSION: Upon review and consideration of all the evidence of record, the Board concludes Petitioner’s request warrants relief. The Board considered the alleged misconduct captured during the DONCAF clearance investigation and noted the DONCAF notification was issued three years after Petitioner enlisted and two years after completion of his request for a security clearance. During that time period, and while Petitioner was granted an interim clearance, the Board noted Petitioner’ completion of BUD/S and service with SEAL Team , to include a deployment to and . The Board concluded the narrative reason “Misconduct due to fraudulent entry-drug abuse” was not supported by sufficient evidence. Further, the Board determined Petitioner’s in-service record, to include his service with SEAL Team , even with the NJP and UA, should be more accurately and appropriately characterized as general, under honorable conditions. Taking into consideration Petitioner’s in-service and post-service performance and accomplishments, as supported by his record and the numerous advocacy letters submitted on his behalf, and applying reference (b) and liberal consideration, the Board determined it was in the interest of justice to grant clemency and further upgrade Petitioner’s characterization of service to HONORABLE. Further, the Board determined Petitioner’s narrative reason for separation, corresponding separation code and separation authority, as well as his reentry code, should be changed to reflect secretarial authority. The Board also noted the error in enclosure (10) regarding Petitioner’s entitlement to the National Defense Service Medal and further noted his contentions regarding missing training and military schools. The Board determined Petitioner’s record should be reviewed by NPC and appropriate corrections to his awards and military training be made. RECOMMENDATION: In view of the above, the Board directs the following corrective action: Petitioner be issued a new DD Form 214 indicating the characterization of service as “honorable,” narrative reason for separation as “secretarial authority,” separation code as “JFF,” separation authority as “MILPERSMAN 1910-164,” and reentry code as “RE-1J.” NPC is directed to review and take appropriate action, if warranted, with respect to Petitioner’s request for corrections to blocks 13, 14, and 19b of his DD Form 214. That a copy of this report of proceedings be filed in Petitioner’s naval record. That, upon request, the Department of Veterans Affairs be informed that Petitioner's application was received by the Board on 4 June 2020. 4. It is certified that a quorum was present at the Board’s review and deliberations, and that the foregoing is a true and complete record of the Board’s proceedings in the above-entitled matter. 5. Pursuant to the delegation of authority set out in Section 6(e) of the revised Procedures of the Board for Correction of Naval Records (32 Code of Federal Regulations, Section 723.6(e)), and having assured compliance with its provisions, it is hereby announced that the foregoing corrective action, taken under the authority of reference (a), has been approved by the Board on behalf of the Secretary of the Navy.