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

 ex-RMSA, USN
Docket No. ND00-00740

Applicant’s Request

The application for discharge review, received 000712, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance hearing discharge review in the Washington Capital Region.  The applicant did not list any representative on the DD Form 293, but subsequently elected the American Legion as his representative.  In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010104.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain:  UNDER HONORABLE CONDITIONS (GENERAL)/Fraudulent entry, authority: NAVMILPERSMAN, Article 3630100.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  (Equity Issue) This former member opines that it is unjust to be discharged for pre-service misconduct when his active duty service was satisfactory.  On this basis, he avers that upgrade of his character of service to full honorable is warranted.

2.  (Equity Issue)  This former member further requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.

Documentation

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

Applicant's statement concerning V.A., requesting upgrade of discharge, change of reenlistment code to RE-1, and possible lawsuit (3 pages)
List of Character References (5 individuals)
Copies of ID's, business cards, pharmacy information, emergency shelter, case worker
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	900104 - 900401	COG

Period of Service Under Review:

Date of Enlistment:  900402		Date of Discharge:  911127

Length of Service (years, months, days):

	Active:    01  07  26
	Inactive:  None

Age at Entry:  22			Years Contracted:  4 

Education Level:  13			AFQT:  25

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.8 (1)	Behavior:  2.9 (2)		OTA:  2.8

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SWASM (w/Bronze Star), SSDR 

Days of Unauthorized Absence:  None

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

UNDER HONORABLE CONDITIONS (GENERAL)/Fraudulent entry, authority:  NAVMILPERSMAN, Article 3630100.

Chronological Listing of Significant Service Events:

900104:	Report of Medical Examination upon entry:  Applicant failed to disclose treatment for a mental condition.

900402:	USN Alcohol and Drug Abuse Screening Certificate (NAVCRUIT 1133/7):  Applicant failed to disclose pre-service drug abuse.

900705:	DOD Personnel Security Questionnaire:  Applicant failed to disclose pre-service drug usage and treatment of mental, emotional, psychological, or personality disorder.

901024:	NJP for violation of UCMJ, Article 86:  on or about 0745, 90OCT02 - 1700, 90OCT02, member did, without authority, absent himself from his organization.
	Award:  Forfeiture of $150 per month for 1 month, restriction for 30 days.  No indication of appeal in the record.

901024:	Counseling:  Advised of deficiency and/or conduct (violation of UCMJ Article 86 - unauthorized absence for a period of less than 24 hours), notified of corrective actions and assistance available and advised of consequences of further deficiencies, and issued discharge warning.

910628:	Navy Central Adjudication Facility, WASHDC advised applicant , via PSA, San Diego, CA, of his ineligibility for a security clearance due to disqualifying information, specifically:  acts of omission or commission that indicate poor judgment, lack of reliability or lack of trustworthiness; any behavior or illness, including any mental condition, which, in the opinion of competent medical authority, may cause defect in judgment or reliability…(89AUG14 - Medical Center Hospital, San Antonio, TX disclosed applicant admitted to Psychiatric Ward and discharged from hospital on 89AUG29 with diagnosis of Schizophreniform Disorder); habitual or episodic use of intoxicants to excess, illegal or improper use, possession, transfer, or addiction to any controlled or psychoactive substance, narcotic, cannabis or other dangerous drug (during the interview on 90SEP14, applicant stated consumed alcohol between six to fifteen beers daily and during re-interviews on 90DEC12, 91FEB14, 15, and 19 applicant admitted smoking marijuana on weekly basis for six months period from 1982 through 1983, didn't use it again until Jan 87 on a monthly basis from Jan 87 to Sep 89, further stated marijuana was free from friends but did trade a radio, value of $60 once, stated was present a number of occasions for cocaine sales conduct in and around bars - no participation in transactions, except once - acted as a middle-man); knowing and willful falsification, cover-up, concealment, misrepresentation, or omission of material fact from any written or oral statement, document, form or other representation or device used by the DoD or any other Federal agency (upon entry, denied any other illegal drug use, admitted had lied under oath about the extend of marijuana use and intentionally concealed additional usage on previous sworn statement made to DIS on 12DEC90 out of fear would not be given a security clearance).

911112:	Applicant notified of intended recommendation for discharge with under honorable conditions (general) by reason of defective enlistment and induction due to fraudulent entry.

911112:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

911127:	CO, USS WHIPPLE advised BUPERS that applicant was discharged with an under honorable conditions (general) by reason of defective enlistment and induction due to fraudulent entry.  Commanding officer's comments (verbatim):  "SA (Applicant)'s past history of drug abuse, fraudulent enlistment, and adverse psychological evaluations have damaged his credibility and compromised his personal integrity.  He can no longer be relied upon in a position of utmost trust and confidence as a radioman aboard a naval vessel or as a sailor in the United States Navy.  This command cannot, in good faith, condone SA (Applicant)'s denial of past drug abuse or history of treatment for mental health illness as evidenced by enclosures (4) through (15).  Therefore, I have administratively separated SA (Applicant) by reason of defective enlistments and inductions due to fraudulent entry into the naval service.  General Discharge awarded, 27 November 1991."

PART III – RATIONALE FOR DECISION AND PERTINENT 
REGULATION/LAW

Discussion

The applicant was discharged on 911127 under honorable conditions (general) 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 and equitable (C and D).

The applicant’s representative submitted the following as issue 1: (Equity Issue) This former member opines that it is unjust to be discharged for pre-service misconduct when his active duty service was satisfactory.  On this basis, he avers that upgrade of his character of service to full honorable is warranted. The Board found that the applicant, by failing to disclose pre-service drug use and a mental disorder and by violating UCMJ Art 86 for unauthorized absence, is deserving of a general (under honorable conditions ) discharge.  No relief will be granted concerning this issue.

The applicant’s representative submitted the following as issue 2: (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, there is no law or regulation which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the service.  Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, to the extent that 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.  The applicant provided a list of character references and copies of ID’s, etc. as documentation of his post-service.  The applicant's efforts need to be more encompassing than those provided.  The applicant should have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs in order for consideration for clemency based on post-service conduct.  At this time the applicant has not provided sufficient documentation of good character and conduct.  Therefore no relief will be granted.  He is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 7/86, effective 
16 Dec 86 until 19 Dec 93, Article 3630100, SEPARATION OF ENLISTED PERSONNEL BY REASON OF DEFECTIVE ENLISTMENTS AND INDUCTIONS DUE TO FRAUDULENT ENTRY INTO 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