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

 ex-SR, USN
Docket No. ND02-00619

Applicant’s Request

The application for discharge review, received 020402, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed so that Applicant’s service is purged from official records.  The Applicant requested a documentary record discharge review.  The Applicant listed a civilian counsel as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 030116.  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 and narrative reason of the discharge shall not change.  The discharge shall remain:  UNCHARACTERIZED/ FRAUDULENT ENTRY INTO MILITARY SERVICE, authority: NAVMILPERSMAN, Article 1910-134 (formerly 3630100).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  Dear Board Members:

I represent (Applicant), a recent Navy recruit.  (Applicant) was discharged with an entry-level separation on or about October 10, 2001.  The stated reason for discharge was "defective enlistement and induction due to fraudulent enlistment as evidenced by Moment of Truth." I am requesting that this letter be included as an attachment to the DD Form 293 that we are submitting for your review.

(Applicant's) prior "convictions" are not convictions within the meaning of State Law or Naval Regulation

The primary reason that (Applicant) was separated is because he "disclosed pre-service civil convictions/involvement at the Moment of Truth." While we are troubled by any system that pushes a subject to confession while under mental or physical exhaustion, the fact remains that (Applicant) was never convicted in Utah State Court.

When evaluating any involvement with the authorities, we must look to the law of the controlling jurisdiction.  Section 78-3a-I 17 of the Utah Code reads, in pertinent part, as follows:

[Proceeding in minor's cases shall be regarded as civil proceedings with the court exercising equitable powers. . . An adjudication may not operate to impose any civil disabilities upon the minor nor to disqualify the minor for any civil service or  military service or appointment. [emphasis added]

(Applicant) has no adult criminal record in this state.  His prior involvement with the Utah Juvenile Court is not a "conviction"; it is an "adjudication." The distinction is very important.  Conviction of a crime carries many different consequences and social stigmas-some of which may haunt the offender for life.  Utah, like many states, has structured its juvenile justice system primarily for the purpose or rehabilitating youthful offenders rather than punishing them.  See Utah Code, Section 78-3a-102 (5).

The forms that (Applicant) completed prior to his enlistment specifically requested information about prior charges or convictions. (See blocks 23 a and b of the attached SF 86).  Relying on Utah law Governing his prior court involvement, (Applicant) truthfully responded in the negative to these questions.

(Applicant's) juvenile adjudications were expunged from his records, and should not have been disclosed.

Again, the "convictions" the form the basis of (Applicant's) separation from active duty occurred sometime around 1980 when (Applicant) was approximately fifteen years old.  We are unable to provide any additional information about these convictions because they have been expunged.  Utah law provides liberal expungement rights for adults who the court deems have been rehabilitated following juvenile involvement.  Section 78-3a-905 of the Utah Code reads, in part, as follows:

"(1) (a) Any person who has been adjudicated under this chapter may ... petition the Court for expungement of his record in juvenile court.

"(2)(a) If the court finds upon the hearing that ... the rehabilitation of the petitioner has been attained to the satisfaction of the court, it shall order sealed all records in the petitioner's case ...

"(2)(b) Upon entry of the order, the proceedings in the petitioner's case shall be considered never to have occurred and the petitioner may properly reply accordingly on any inquiry matter. . . .' [emphasis added].

Thus, the very Court that originally handed down the adjudications against (Applicant) has effectively obliterated them.  Under the controlling law, (Applicant) is not required to disclose these matters.

Although he did indeed disclose the old adjudications to his recruiter, he recruiter correctly told (Applicant) that these did not need to be listed in the recruitment forms.  When questioned again about these matters at the "moment of truth," (Applicant) again disclosed them, and also noted the expungement.

(Applicant) was effectively denied right to counsel.

Again, we are very distressed at the method apparently used to draw a "confession" out of (Applicant).  Individuals who are mentally and physically exhausted will often have faulty memory, omit details, and otherwise admit to matters that they shouldn't.  This particular case illustrates the problems of the "moment of truth" method.  (Applicant) was under no obligation to disclose his prior juvenile adjudications.  However, in the confusion caused by physical and mental exhaustion, he disclosed them anyway-even though the State of Utah now considers that these events never occurred.

The same exhaustion and confusion effectively denied (Applicant) right to legal counsel.  The "Administrative Separation Processing Notification Procedure" form indicates that (Applicant) was required to make some difficult decisions about his pending discharge while still in this same exhausted state.  As his attached affidavit indicates, he was required to decide whether to request legal counsel and to submit statements to the separation authority either the day immediately following his disclosures-a time when he would still have been under the emotional effects of the "Moment of Truth."  He states that, at the "moment of truth," he had been constantly awake for a period of 36 hours, and forced to stand at attention for most of the ten hours immediately preceding the interrogation.  Following the interrogation, he was permitted approximately five or six hours of sleep, and then awakened, briefed on discharge procedures, and told to make an immediate election as to whether he wanted legal counsel.  Few people could have made a rational, lucid decision under such circumstances.

We also note that, while the form purports to give (Applicant) the right to counsel, it fails to list the name of a military counsel to assist him.

Thus, under the time constraints, the mental stress, the disorientation caused by a new environment, and the lacking information, (Applicant) was effectively denied right to legal counsel or even time to make reasonable, calculated decisions about the pending discharge action.

Conclusion

Any separation from the military short of honorable has significant ramifications for the discharged member.  In (Applicant's) case, it has severely hampered him in his ability to seek civilian employment.  Moreover, he will probably not be able to enlist in any branch of the military now because of his Naval record.  However, the grounds for his discharge were not valid.  Had the Naval authorities taken the time to properly investigate the matter, they likely would have determined that (Applicant) did not merit discharge.

After careful consideration, (Applicant) has determined that he does not want to seek reinstatement onto active duty.  However, he would like the stigma of a less-than-favorable discharge removed from his record so that he can pursue a civilian career.  Therefore, we specifically request that you purge from the official records any reference to (Applicants') time in service or the nature of his discharge.  Very truly yours,

Documentation

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

Affidavit from Applicant dated December 20, 2001
Affidavit from Applicant dated December 20, 2001
Four pages from Applicant's service record

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	010821 - 010927	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  010928		Date of Discharge:  011010

Length of Service (years, months, days):

	Active:    00  00  13
	Inactive:  None

Age at Entry:  33			Years Contracted:  4

Education Level:  12			AFQT:  62

Highest Rate:  SR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA*		Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

*No Marks Available for review.

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

UNCHARACTERIZED/FRAUDULENT ENTRY INTO MILITARY SERVICE, authority:  NAVMILPERSMAN, Article 1910-134 (formerly 3630100).

Chronological Listing of Significant Service Events:

Undated:	Report of Medical Examination upon entry:  Applicant failed to disclose knee surgeries (1985 and 1988), appendectomy (1994) and laparoscopy (1995).

Undated:	Application for Enlistment (SF 86):  Applicant failed to disclose history of serious and violent police involvement to include driving while suspended (Dec 93), grand theft auto (15 years of age), aggravated assault (about 1980) and speeding (Oct01).

011003:	Applicant notified of intended recommendation for discharge with uncharacterized service by reason of defective enlistment and induction due to fraudulent entry as evidenced by Moment of Truth.

011003:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

011004:	Commanding Officer, Recruit Training Command, Great Lakes, IL directed discharge with uncharacterized service 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 011010 with uncharacterized service 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).

Issue 1.  The Applicant failed to disclose prior service criminal offenses with which he was charged with, despite clear instructions on the Standard Form 86 to report information which may have been expunged from court records.  The Applicant failed to list prior service surgeries on his enlistment physical.  While he may feel that his recruiter contributed to his actions, the record is devoid of evidence that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  No other narrative reason more clearly describes the circumstances surrounding the Applicant’s processing for administrative separation.  Relief denied.

The Board found no impropriety or inequity upon review of the circumstances regarding the Applicant’s waiver of rights during his administrative separation proceedings.  The Applicant did not provide sufficient documentation to overcome the presumption of regularity governing these proceedings.  Relief denied. 

The Board has no authority to purge an Applicant’s record of service as requested.  With respect to non-service related administrative matters, an uncharacterized separation is considered the equivalent of an honorable or general (under honorable conditions) characterization.

The Applicant’s discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable.  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity is evident 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.  Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  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 32, effective 26 Apr 01 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