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

 
 ex-EM3, USN 
Docket No. ND04-01317

Applicant’s Request

The application for discharge review, received 20040810, 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 review was conducted in Washington, D.C. on 20050214.  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 4 to 1 that the character of the discharge shall not change and 3 to 2 that the narrative reason for separation 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.  Please consider subpar1j(A), CO, USS Devastator (MCM 6) statement to upgrade my discharge to Honorable.”

Documentation

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

Applicant’s Discharge Package (5 pages)
NCIS Report of Investigation, dated July 10, 2003 (14 pages)
Report of Medical Examination, dated September 9, 2003
Statement from Applicant
Letter from Applicant, dated January 10, 2005
Applicant’s Form DD-214 (2 copies)
Letter from Applicant dated January 19, 2005

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	990522 - 990527	COG
	Active:   USN 			990528 - 021023	HON

Period of Service Under Review:

Date of Enlistment:  021024		Date of Discharge:  031031

Length of Service (years, months, days):

	Active:    01  00  08
	Inactive:  None

Age at Entry:  24			Years Contracted:  4

Education Level:  12			AFQT:  71

Highest Rate:  EM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF*			Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, GCM, SSDR

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

Chronological Listing of Significant Service Events:

021024:	Applicant reenlisted this date for a period of four years.

030620:	Applicant provided a sworn statement to NCIS investigators in which he admitted to wrongful use of a controlled substance on two occasions during his first enlistment.

030902:	Applicant notified of intended recommendation for discharge by reason of defective enlistment and induction due to fraudulent entry, drug abuse.  Applicant notified that if discharge is approved, the least favorable characterization of service possible is general (under honorable conditions).

030902:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

030915:	Commanding Officer recommended a waiver and retention for processing by reason of defective enlistment and induction due to fraudulent entry into the military service, drug abuse.  Commanding Officer’s comments (verbatim):  “Petty Officer R_ was under investigation by the Naval Criminal Investigative Service for possession of a pipe commonly considered as drug paraphernalia.  It was later determined that the pipe was actually the property of his spouse, whom he is currently in the process of seeking a divorce, was placed in his household goods shipment without his knowledge.  However, during the course of the investigation, Petty Officer R_ admitted to using marijuana.  His usage occurred over a year ago, during his previous enlistment.

	Due to the timeline of the offense, the fact it had happened under his previous enlistment, and he tested negative to all drug testing while on board, I have not initiated Nonjudicial punishment.

	In the short time Petty Officer R_ has been on board, his performance has been nothing short of spectacular.  The knowledge and experience he has brought with him has had an incredibly positive influence in his division and throughout his department.  Although he displayed a lack of good judgment during an extremely stressful time of his life, and I would like to retain him on board, I am required to follow Naval personnel regulations and initiative separation procedures.  

	I feel Petty Officer R_ has enormous potential that has yet to be tapped which would be beneficial to himself, my ship, and the United States Navy.  I most strongly recommend a waiver be granted for Petty Officer R_, allowing him to continue what promises to be an outstanding Naval career.”

030922:	Commander, Mine Countermeasures Squadron TWO, forwarded Commanding Officer’s waiver request, does not concur with waiver recommendation.

031009:	Commander, Mine Warfare Command, directed the Applicant's discharge 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 20031031 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:  Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question.  No such impropriety or inequity is evident during the Applicant’s enlistment.  The Applicant contends that he served the United States well and he is entitled to an upgrade.  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.  A general discharge is warranted for behavior not sufficiently meritorious to warrant an honorable discharge.  The Applicant’s service was marred by a fraudulent enlistment in which he failed to disclose his drug use from a prior enlistment.  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.  Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements 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.  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 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

		Secretary of the Navy Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023