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

 ex-SN, USN 
Docket No. ND03-01013

Applicant’s Request

The application for discharge review, received 20030516, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a documentary record 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 20040415.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  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, DRUG ABUSE, authority: NAVMILPERSMAN, Article 1910-134 (formerly 3630100).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I originally applied for enlistment in the Navy in July 1999, in Frankfurt, Germany.  As part of my enlistment processing I was asked if I had ever used illegal/illicit drugs.  I informed my recruiter that I had smoked marijuana in high school.  He told me that I would have to get a drug waiver, but that it was “no big deal.” When I was filling out the paperwork for the waiver he instructed me to put down that I had only used marijuana “two or three times.” While I knew that statement was false, my recruiter told me “it was okay,” and not to worry about it.

In January/February 2002 MAT R_ K_(Command Master-at-Arms, SIMA Ingleside) approached me and informed me that I was under investigation.  When I asked him what I was being investigated for, he informed me that it was drugs.  I immediately informed him that I didn’t use drugs and offered to take a urinalysis test.  He questioned me about my drug waiver and the marijuana I used in high school (without informing me of my right to keep silent).  He was asking for extremely specific information (dates I used it, where I used it, who I was with, etc...).  I told him I didn’t remember the information he was requesting (and I don’t, it’s been four or five years).  He called me a liar and, laughing, said “that’s not what you told NCIS.” He then sent me to the barracks, told me to stay there, and said we would talk later.  From that date on I was assigned menial duties, such as taking out the garbage, cleaning windows, landscaping, etc. I was no longer allowed to work in my rate.  He continued to harass and berate me until 1 finally made something up to “get him off my back.” He told me that he was going to throw me out of the Navy with a BCD, and give me jail time.  When I asked for legal representation MAJ K_ informed me that the Navy would not provide it for me.

I had never been to Captain’s Mast or received any Page 13 counseling sessions, but I was still scared that I would get a BCD and/or go to jail.  MA1 K_ placed me on report for fraudulent enlistment.  I was taken to Captain’s Mast, where the CO found me guilty I was awarded reduction in rate to E-2 and discharge from the Naval Service.  I went to MA1 K_’s office, as instructed prior to mast, and waited for him.

When MA1 K_ came into his office, he informed me that the CO was thinking about retaining me in Naval Service.  I told him that I wanted to stay in the Navy.  He went back in to see the CO and when he came back to his office, he informed me that the CO was going to discharge me.

During the time I was in the Navy I received three evaluations.  Prior to receiving an evaluation from SIMA my evaluations were “Meets Standards” or “Progressing,” with no “Below Standards” marks.  My evaluation from SIMA was an overall 1.83, based upon my dealings with MA1 K_.

While I understand that I signed a fraudulent document, I was not a drug user when I entered the service, nor did I use any illicit substances during my military service.  I feel that I was unfairly “railroaded” into a General Discharge, and that, had MA1 K_ not abused his authority, and informed me of my rights prior to questioning me, I would still be a productive member of the Navy, as I was prior to my dealing with MA1 K_.”

Documentation

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

Copies of DD Form 214 (2)
Copies from Service Record (5 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	990624 - 990819	COG
	Active:   USN 			None

Period of Service Under Review:

Date of Enlistment:  990820		Date of Discharge:  020325

Length of Service (years, months, days):

	Active:    02  07  06
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 (12 months extension)

Education Level:  12			AFQT:  44

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (3)	Behavior:  2.33 (3)		OTA:  2.33

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, DRUG ABUSE, authority:  NAVMILPERSMAN, Article 1910-134 (formerly 3630100).

Chronological Listing of Significant Service Events:

990624:	Application for Enlistment (DD Form 1966):  Applicant failed to disclose the full extent of his drug usage.

020214:	NJP for violation of UCMJ, Article 83: Fraudulent enlistment, violation of UCMJ Article 107: False official statement.
	Award:  Forfeiture of $654.00 pay per month for 1 month, reduction to E-2.  No indication of appeal in the record.

020215:	Applicant notified of intended recommendation for discharge with a general (under honorable conditions by reason of defective enlistment and induction due to fraudulent entry, drug abuse.

020215:	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.

020318:	Commanding Officer authorized applicant discharged with a general (under honorable conditions) by reason of defective enlistment and induction due to fraudulent entry into the military service, drug abuse.  

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020325 with a general (under honorable conditions) by reason of defective enlistment and induction due to fraudulent entry into the military service, drug abuse (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 contends that he served the United States well and he is entitled to an upgrade.  When the service of a member of U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  A General discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by nonjudicial punishment for making a false official statement at the time of enlistment concerning his drug use, thus creating a fraudulent enlistment.  While the Applicant may feel he was “railroaded in receiving a General discharge”, the Applicant was properly notified of the discharge action, including the right to counsel.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

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 documentation to support any claims of post-service accomplishments or any other evidence related to his discharge 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 32, effective 26 Apr 01 until 21 Aug 2002, 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