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

 ex-EN3, USN
Docket No. ND02-00385

Applicant’s Request

The application for discharge review, received 020213, requested that the characterization of service on the discharge be changed to honorable and the change RE-4 to RE-1 or 3.  The Applicant requested a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 021104.  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:  GENERAL (UNDER HONORABLE CONDITIONS)/FRAUDULENT ENTRY INTO MILITARY SERVICE, authority: NAVMILPERSMAN, Article 1910-134 (formerly 3630100).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  I am requesting a change of RE-code from RE-4; which is unacceptable for return to military active service.  I am also requesting the character of discharge to change to honorable.  I am currently in the New Mexico Army National Guard and would like to go back to active duty so I can finish my long desired career. My command @ discharge was the USS Frank Cable in Guam.  When I re-entered service in Aug 1997 my intention was to retire.  Due to an unexpected divorce/separation, I was left unemployable.  I was discharged 15 Jun 1998.  I endured the overseas screening process @ TPU San Diego and reported to the Frank Cable in Guam. Once I check on board, dispersing realized my pay had been grossly miscalculated.  My debt to income ratio for geographical bachelor increased 30% once my actual pay was discovered.  The command agreed I should have never been placed in that billet.  Knowing this was not my fault, they attempted to help me over the next 10 months to transfer to a station where my family could join me.  This would have brought my pay to normal.  Bumpers denied transfer twice and even discharge (hardship) Capt S_ (CO of Frank Cable) did the only thing possible.  If I admitted to not listing a $300.00 credit card on my overseas screening, he could discharge me @ his level without Bupers prior authority.  The command knew I was a sailor and diver of honor and that this wasn't my fault.  This is why the gave me a "general under honorable conditions".  I desperately wanted and still want to finish my career.  I am respectfully requesting that this board consider my request.  I would like to transfer from the New Mexico National Guard to active duty.  I have corresponded with the active Army and Marine Corps.  Both have agreed the character of "General Under Honorable Conditions" can be waived, but a RE-4 can't. I admitted to fraudulent entry only to help my family.  My wife and children were negative over $400.00 a month, due to the miscalculation during overseas screening.  During the time I was attached to the ship, my family (wife & daughters) were in financial despair.  I have resolved all prior situations.  I am now divorced and only have one dependent. My finances are all consolidated and I am eligible for world wide deployment.  I also have a dependent care plan for my child.  At this point I only have 2 years left before I would have to go back through deep sea dive school. Again my request is that the board change my Re-entry code to that of acceptable status; RE-1 or RE-3 and that the character of discharge to "Honorable".

Documentation

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

Applicant's DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   USMC		8806?? - 8807??	ELS (Medical Reasons)*
	Inactive: USNR(DEP)	890330 - 890330	COG
	Active:   USN			890331 - 930330	Released Active Duty
	Inactive: USNR		930331 - 930922	HON
	Active:   USA			930923 - 940520	HON (ARF)
   USN			970811 - 980615	HON (Parenthood)
* Insufficient documentation to verify.

Period of Service Under Review:

Date of Enlistment:  980915		Date of Discharge:  990806

Length of Service (years, months, days):

	Active:    00  10  22
	Inactive:  None

Age at Entry:  28			Years Contracted:  2

Education Level:  12			AFQT:  55

Highest Rate:  EN3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF*		Behavior:  NMF*		OTA:  NMF*

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, BER, GCM, SASM

Days of Unauthorized Absence:  None

*No Marks Found in service record.

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:

990412:	Message from USS FRANK COLE to NPC: Request early return of Applicant due to financial situation.  Debt to income ratio 131%.

990421:	Message from BUPERS to USS FRANK COLE: Request for early return disapproved.

990722:	Commanding officer directed discharge with a general (under honorable conditions) by reason of defective enlistment and induction due to fraudulent entry.

Discharge package missing from service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 990806 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 and equitable (C and D).

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reentry into the naval service or any other of the Armed Forces.  The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy or Marine Corps.  Reenlistment policy of the naval service is promulgated by:
Commander, Navy Recruiting Command, 
5722 Integrity Drive, Bldg 784, Millington, TN 38054, and the 
Commandant, United States Marine Corps, Code MMEA, 
3280 Russell Road, Quantico, VA 22134.  
Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment.  A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  Relief, is therefore, denied.

Responding to the Applicant’s second issue, normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the Applicant’s enlistment.  Additionally, 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 civilian life, subsequent to leaving the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities, are examples of verifiable documents that should have been provided to receive consideration for clemency, based on post-service conduct.  The Applicant did not provide any of these documents.  Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 Dec 97 until 2 Feb 01, 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