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

ex-AA, USNR
Docket No. ND00-00443

Applicant’s Request

The application for discharge review, received 000215, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant listed the Veterans of Foreign Wars as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 001121.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety in the characterization of the applicant’s service but found an inequity in the characterization of discharge.  The Board’s vote was 3-2 that the character of the discharge shall change.  The discharge shall change to:  HONORABLE/FRAUDULENT ENTRY INTO MILITARY SERVICE, authority: NAVMILPERSMAN, Article 1910-134 (formerly 3630100).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  I went to NRS Moren Valley to join the United States Navy.  The first issue I let my recruiter know was that I've been arrested for burglary  which I was found not guilty and released.  The recruiter did a police record check and nothing came back on my record.  My recruiter said since I have no record and my background check was clear to not even mention the incident.  I did exactly what my recruiter told me and begin my processing.  After boot camp & school I was to be stationed in Japan.  The day before my departure I was called to legal and told that an FBI background check showed that I had been arrested for burglary in 1998 in Perris California.  I have no record and never been convicted of a crime.  I failed to disclosure the information upon enlistment.  I explain to the legal officer that I told my recruiter and he said not to mention it.  At the time I was trying to get my life together and make something of myself in the United States Navy.  I know I was wrong for listening to the recruiter about not telling the truth at MEPPS and in basic training.  I was really trying to get my career and life together and didn't want to mess up my chances.  I truly and sincerely am sorry and am asking for a second chance at a career and stable life in the United States Navy.

2.  Fraudulent entry into military service.  A member may be separated on the basis of procurement of a fraudulent enlistment, induction, or period of military service through any deliberate material misrepresentation, omission, or concealment which, if known at the time of enlistment, induction, or entry onto a period of military service, might have resulted in rejection. 32 CFR Part 41, App. A, Part 2, A. The command may recommend retention and the service member may be retained where the defect no longer is present, or the defect is waiver able and is appropriately waived.  We refer this case to the Board for their careful and compassionate consideration and request the applicant's discharge be reviewed for an upgrade to Honorable.

Documentation

In addition to the service record, the following additional documentation, submitted by the applicant, was considered:

Copy of DD Form 214 

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Active:   None
	Inactive: USNR (DEP)	980317 - 980505	COG

Period of Service Under Review:

Date of Enlistment:  980506		Date of Discharge:  990129

Length of Service (years, months, days):

	Active:    00  08  24
	Inactive:  None

Age at Entry:  20			Years Contracted:  8

Education Level:  10			AFQT:  34

Highest Rate:  AA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF			Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  None 

Days of Unauthorized Absence:  None

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/FRAUDULENT ENTRY INTO MILITARY SERVICE, authority:  NAVMILPERSMAN, Article 1910-134 (formerly 3630100).

Chronological Listing of Significant Service Events:

980505:	Application for Enlistment (DD Form 1966):  Applicant failed to disclose arrest for forcible rape 27Apr97 and arrest for burglary/attempted auto theft 3Jan98.

981116:	Applicant statement re fraudulent enlistment.

981207:	Officer in Charge, Naval Air Maintenance Training Group Detachment, North Island requested for waiver be granted.

990113:	Commander, Navy Region, Southwest denied waiver request.

990119:	Applicant notified of intended recommendation for discharge with a general (under honorable conditions by reason of defective enlistment and induction due to fraudulent entry

990119:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

990120:	Officer in Charge, Naval Air Maintenance Training Group Detachment, North Island directed the applicant's discharge with a general (under honorable conditions) by reason of defective enlistment and induction due to fraudulent entry.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 990129 with a general (under honorable conditions) by reason of defective enlistment and induction due to fraudulent entry (A).  The Board presumed regularity in the conduct of governmental affairs (B).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper but inequitable (C and D).

The Board found the applicant’s service characterization warranted a type warranted by service record.  There was nothing in the record to demonstrate the applicant’s service was anything other than honorable.  Relief is warranted.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 Dec 97 until Present, Article 1910-134 (previously 3630100), Separation by Reason of Defective Enlistments and Inductions – Fraudulent Entry Into the Naval Service.

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

PART IV - INFORMATION FOR THE APPLICANT

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 Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive.  You should read Enclosure (5) of the Directive 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 Directive 1332.28 and other Decisional Documents by going online at "afls14.jag.af.mil". 

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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023