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

ex-AN, USN
Docket No. ND03-01154

Applicant’s Request

The application for discharge review was received on 20030620.  The Applicant requests that the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to “At Navy’s Discretion.”  The Applicant requests a personal appearance hearing before the Board in the Washington National Capital Region.  The Applicant designated the Disabled American Veterans as the representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Board first conducts a documentary record review prior to any personal appearance hearing. 

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040504.  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 and reason for discharge shall not change.  The discharge shall remain:  UNCHARACTERIZED/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.  “Fraudulent entry” narrative reason for separaion is inequitable; change requested.  Teenage drug experimentation discussed with Recruiter during enlistment process.  Before leaving for Boot Camp discussed with Recruiter intention to disclose at Moment of Truth.  Freely discussed teenage past at Moment of Truth & with everyone else at interest at RTC & NTC.

2.  “Drug Abuse” narrative reason for separation is inequitable; change requested.  Applicant’s service was drug free, honorable & at Boot Camp he received excellent recommendations.  The term causing undue harm; eg Natl Guard recruiter infers separation due “active drug abuse.

3.  MILPERSMAN 1910-134 review process not understood by applicant & thus incompletely conducted.  Applicant incompletely informed of process & his best role in it.  Navy lawyer discouraged applicant from retaining own counsel.  Navy legalman incorrectly explained applicant’s rights & post-separation recourse.

4.  In the rush of processing 1000s of trainees each week, honest oversights resulted on all sides.  Rush contributed to mi-communiations & lack of counsel.  No time to develop fuller explanations or conduct deeper deliberations.  Situation much exascerbated by applicant’s ignorance of process & inability to pro-actively participate.  

5.  Applicant very much desires opportunity to reenlist in US Navy.  Applicant is superior reenlistment candidate by virtue of exemplary Boot Camp performance.  Navy evaluation found no impaiarment due teenage drug experimentation more than 5 years ago.  

Applicant requests change in Character of Service to “Honorable”.
Applicant requests change in Narrative Reason For Separation to “At Convenience of Navy”. 

Applicant respectfully requests reentry “waiver” to permit reenlistment.”

Additional issues submitted by Applicant’s counsel/representative (DISABLED AMERICAN VETERANS):

“1.  Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current Un-Characterized Discharge to that of Honorable, with removal of the narrative reason for separation of Fraudulent Entry Into Military Service to that of Convenience of the Government.

The FSM served on active service from August 5, 2002 to November 21, 2002 at which time he was discharged due to fraudulent entry, after three months and seventeen days of active duty. 

The FSM contends the current discharge is improper because he used no drugs while in service, and that said service was honorable.  FSM also maintains the need for equitable relief due to the harm the drug abuse and fraudulent entry notations have caused.

This creates a need for a review of the application of the standard, for the Board to determine that the applicant’s discharge was improper.  The Board will determine which reason for discharge should have been assigned based upon the facts and circumstances before the Board, including the service regulations governing the reasons for discharge at that time, to determine whether relief is warranted.  See, SECNAVIST 5420.174 (c), Par. (f) (1).

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174C.

Under the premises of equitable relief, we believe the Board can change the narrative reason to Convenience of the Government, removing the notation of fraudulent entry/ Drug Abuse.  As to the request of the change of discharge to reflect an Honorable discharge we leave that to a determination by the Board.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the applicant.

Respectfully,”

Documentation

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

Copy of DD Form 214 (Member 4 & 1)
Applicant’s letter to the Board dtd Jun 17, 2003 (2 pages w/Applicant’s photo)
Index of Attachments (7 attachments)
	Att 1:  Applicant’s Recruit’s Disclosure
	Att 2:  Applicant’s Voluntary Statement
	Att 3:  Division Commanders’ Letters of Recommendation
	Att 4:  RTC Request for Separation
	Att 5:  NTC Approval for Separation
	Att 6:  Certificate of Release (DD Form 214)
	Att 7:  Written Request for Assistance from Recruiter
Applicant’s Actions & Observations Following Post-Separations Meeting with Recruiter Held 12/04/02 (2 attachments)
	Att 1:  MILPERSMAN 1910-134
	Att 2:  Appointment of Veterans’ Service Organization (Business Card)
Statement of Applicant’s Father, G_ P. B_, Jr. (4 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	020522 - 020804	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  020805		Date of Discharge:  021121

Length of Service (years, months, days):

	Active:    00  03  17
	Inactive:  None

Age at Entry:  23			Years Contracted:  4 (12 months extension)

Education Level:  15			AFQT:  84

Highest Rate:  AN

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.

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

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

Chronological Listing of Significant Service Events:

020522:	Wavier granted at MEPS San Diego, CA for possession of drug paraphernalia one time and possession of marijuana one time (2 time offenses). 

020813:	RTC Legal Dept:  Recruit’s disclosure – LSD – 3 times, Mushroom 3 time 96/97, Cocaine 5 times 97/98, marijuana, 1000 times, 93/01.  Applicant signed statement that he did not tell the recruiter/liaison at MEPS.

020916:	Applicant’s voluntary statement.  He further stated that he experimented with Ecstasy too and my recruiter doesn’t know.

020916:	Applicant request retention.

020917:	Recruit Division Commander’s Letters of Recommendation from HM1 J.M. C_ and HM1 M.V.C.

021021:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service possible is a general (under honorable conditions) by reason of defective enlistment and induction due to fraudulent entry, drug abuse, as evidenced by Moment of Truth.

021107:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected the right to make a statement and the right to obtain copies of the documents used to support the basis for the separation.

021113:	Commanding Officer, Recruit Training Command, Great Lakes recommended discharge with an uncharacterized service by reason of defective enlistment and induction due to fraudulent entry into the military service, drug abuse, as evidenced by Moment of Truth.

021115:	Commander, NTC, Great Lakes, directed the Applicant's discharge with an uncharacterized service 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 20021121 with an uncharacterized service 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).

Issues 1-5:  By regulation, members discharged within the first 180 days of enlistment are given characterization of service “Uncharacterized” unless there were unusual circumstances regarding performance or conduct, which would merit an “honorable” characterization.  Applicant’s service record did not contain any unusual circumstances during the less than four months in the military to warrant a change of discharge to “honorable.”  Additionally, the Board finds that the Reason for Discharge accurately reflects the applicant's status at the time of his discharge, and that the discharge was proper and equitable at the time of issuance.  The Applicant’s claims that he was advised not to retain his own counsel and that his confession in the moment of truth resulted from not completely understanding the process of separation do not refute the presumption of regularity.  The records indicate that Applicant’s case was processed in accordance with regulations and that he was afforded all due process.  The narrative reason of defective enlistment and induction due to fraudulent entry into the military service, drug abuse is an accurate narrative description of the reason for the applicant's discharge.  Relief denied.

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment.  A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  

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, a positive employment record, a drug free lifestyle, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.   At this time, the Board determined that the documentation submitted by the Applicant does not mitigate his misconduct while on active duty.  

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), re-issued October 2002, effective 22 Aug 2002 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