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

 ex-AA, USN
Docket No. ND04-00385

Applicant’s Request

The application for discharge review, received 20040109, requested that the characterization of service on the discharge be changed to entry level separation or uncharacterized.  The Applicant requests a personal appearance hearing before the board in the Washington National Capital Region.  The Applicant did not list any representative on the DD Form 293.  In the acknowledgement letter, the Applicant 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 20040910.  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:  UNDER OTHER THAN HONORABLE CONDITIONS/FRAUDULENT ENTRY INTO MILITARY SERVICE, DRUG ABUSE, authority: NAVMILPERSMAN, Article 1910-134 (formerly 3630100).  Discharged in absentia.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “My discharge was based upon a misunderstanding.  Prior to joining the Navy a had a case in court for a misdemeanor which occurred while I was younger.  Upon joining the Naval service I never disclosed this information.  I did this because I wanted to leave the past behind and start a new beginning giving my family a better life and making my parents proud.  Once in the service leaving the past behind I received a court notice with date and time.  I then mentioned this to my division officer he then discussed the issue with the legal department.  They then decided that I was to leave the service.  Once this was said I was embarrassed and ashamed. I didn’t want to face my peers and I went AWOL. I then returned to the Naval Station I felt very uncomfortable and decided to waive my board and leave.  I later received my DD 214 and this was my discharge.  This experience has been very painful both to me and my family.  I wish that my entry would change.  With this change I know I can provide my 4 children better means and give them a better education.  I can also serve my country in which I am proud to be American.”

Applicant marked the box "I HAVE LISTED ADDITIONAL ISSUES AS AN ATTACHMENT TO THIS APPLICATION."  Issues listed below were extracted from DD Form 149.

“I would like to request a change discharge to entry level separation or uncharacterized so I may re-enter the service.

I think that now I am much more mature and I can encounter challenges that are placed before me.

I think I should be given a Second Chance.”

Documentation

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

Applicant’s DD Form 149

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	000915 - 000928	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  000929			Date of Discharge:  011223

Length of Service (years, months, days):

	Active:    01  02  26	Does not exclude lost time
	Inactive:  None

Age at Entry:  17 Parental Consent		Years Contracted:  4

Education Level:  12				AFQT:  49

Highest Rate:  AA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA*			Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  AFEM, SSDR

Days of Unauthorized Absence:  58

*No marks assigned

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

UNDER OTHER THAN HONORABLE CONDITIONS/FRAUDULENT ENTRY INTO MILITARY SERVICE, DRUG ABUSE, authority:  NAVMILPERSMAN, Article 1910-134 (formerly 3630100).

Chronological Listing of Significant Service Events:

000711:	Applicant arrested for the criminal sale of a controlled substance (cocaine) in the State of New York.  Sentenced to 70 hours of community service and driver’s license suspended for 6 months.  [Extracted from Commanding Officer’s letter dated 011201.]

000915:	Security Clearance Application (Standard Form 86):  Applicant failed to disclose police record – felony offenses.

010607:	Counseling: Advised of deficiency (Ten minutes late to muster on 010606 and came late to muster on 010607), notified of corrective actions and assistance available.

010717:	Counseling: Advised of deficiency (Sitting on the flight deck during flight operations on 010717), notified of corrective actions and assistance available.

010731:	Applicant to unauthorized absence 0630, 010731.

010801:	Applicant from unauthorized absence 1530, 010801 (2 days/apprehended).

010808:	Applicant notified of intended recommendation for discharge with an under other than honorable conditions by reason of defective enlistment and induction due to fraudulent entry.

010821:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27(b), elected to appear before an Administrative Discharge Board.

010919:	Counseling: Advised of deficiency (Unauthorized absence for 30 minutes from his work center), notified of corrective actions and assistance available.

010924:	Counseling: Advised of deficiency (Did not show up for extended working hours that were given to him on 010922.  Applicant has been verbally counseled everyday for the past two weeks), notified of corrective actions and assistance available.

010926:	Applicant to unauthorized absence 0630, 010926 and failed to appear for the administrative discharge board.  [Partial extracted from Commanding Officer’s letter dated 011211.]

010929:	Applicant from unauthorized absence 1615, 010929 (3 days/apprehended).

011011:	Applicant waived right to an administrative discharge board and submitted a statement.

011030:	Applicant to unauthorized absence 0630, 011030.

011129:	Applicant declared a deserter.

011211:	Commanding Officer recommended discharge with an under other than honorable conditions by reason of defective enlistment and induction due to fraudulent entry into the military service.  Commanding Officer’s comments (verbatim): Airman Apprentice G_ (Applicant) intentionally withheld from the Navy his civilian criminal arrest record (enclosure (4)).  His failure to disclose his previous criminal activity cannot be to1erated, especially given the nature of the crime which could not have been waived during the recruiting process.  One of the tenants of military service is the trust we place in one another in order to fulfill our mission.  Even putting aside the serious nature of the crime that Airman Apprentice G_ (Applicant) withhe1d this serious breach of trust has no place in the Navy.
I determined that it would be in the best interest of the command and the Navy to pursue an administrative separation for Airman Apprentice G_ (Applicant) based upon his failure to disclose his civilian conviction.  Airman Apprentice G_ (Applicant) requested an Administrative Board, which was duly scheduled for 26 September 2001.  On the day of the Board, Airman Apprentice G_ (Applicant) went UA.  This period of unauthorized absence ended when the Hampton Area Shore Patrol apprehended him on 29 September 2001 at the Navy Exchange where he was caught uttering worthless checks which totaled $1,964.19, and are attached as enclosure (8).  Later, his landlord then informed my command that Airman Apprentice G_ (Applicant) had failed to pay his rent for the months of August, September, and October.  Their notification is included as enclosure (9).
Finally Airman Apprentice G_ (Applicant) went UA again in 30 October 2001 and his whereabouts remain unknown at the present time.
Airman Apprentice G_ (Applicant) has been afforded every opportunity to right his sinking Naval career.  In fact, an ear1ier UA period of one day, which also ended by apprehension was handled at the departmental leve1.  Please see the corresponding Page 6 as enclosure (5).  His division officer has counseled him as well, and these counseling sheets are attached as enclosure (10). His failure to appear at his scheduled Administrative Board, and his current UA period, are further evidence of his poor conduct, which I believe constitutes a significant departure from the conduct expected of members of the Naval service.  For all of these reasons, I recommend Airman Apprentice G_ (Applicant) receive an Other Than Honorable separation from the Navy.

011217:	COMCARGRU TWO directed the Applicant's discharge with an under other than honorable conditions by reason of defective enlistment and induction due to fraudulent entry into the military service.  Discharged in absentia.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20011221, in absentia, with an under other than 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's other than honorable discharge was proper and equitable.  The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the characterization of service if such a change is warranted.  There is no evidence of impropriety, inequity or procedural irregularities in the Applicant's discharge.  The Applicant's misconduct is clearly documented.  He acknowledged and waived his rights to administrative review.  The Applicant was afforded the appropriate due process during the processing of his case.  The NDRB found that the aggravating factors in this case outweighed any mitigating and extenuating factors either presented by the Applicant or contained in his record.  Aggravating facts noted by the Board included Applicant’s failure to disclose his service disqualifying pre-service misconduct, his repeated unauthorized absences, being declared a deserter, and uttering worthless checks.  When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  An under other than honorable conditions 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.  Clearly, an upgrade of the Applicant's discharge to an honorable characterization is not warranted.  Relief denied.

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 the Commander, Navy Recruiting Command, 5722 Integrity Drive, Bldg 784, Millington, TN 38054.  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.  

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.  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