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

    ex-DC3, USNR-R
Docket No. ND05-00164

Applicant’s Request

The application for discharge review, received 20040929, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a documentary record review.  The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050201.  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.  However, the Board found that the Applicant’s narrative reason for separation was improper.  The Board’s vote was unanimous that the character of the discharge shall not change, but that the narrative reason for separation shall change.  The discharge shall change to:  GENERAL (UNDER HONORABLE CONDITIONS)/SECRETARIAL AUTHORITY, authority: NAVMILPERSMAN, Article 1910-164 (formerly 3630900).  The separation code shall change to: JFF.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “Respectfully request to have discharge changed, RE code changed, and, to be advanced to Petty Officer 2nd Class.

     I enlisted in the U.S. Navy on 28SEP98 and was honorably discharged on 27SEP02.  I affiliated with the Naval Reserves on 28SEP02, I was required to fill out and submit an enlistment package.  The information I submitted was misunderstood by the reserve unit I was attached to.  I was not afforded the opportunity to provide evidence to prove my innocence.  I was transferred to the voluntary training unit on or about 05OCT03 pending the results of the investigation.  The investigation concluded that I did not fraudulently enlist for two reasons:  1) I did not enlist into the reserves, I affiliated.  2) The date of my offense and date of affiliation proved that I did not make a false official statement.  I was, however, discharged from the Naval Reserve on 24JUN04.  My honorable discharge was changed to general under honorable conditions and my re-enlistment code was changed from RE-1 to RE-4.”

Documentation

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

Applicant’s DD Form 214 (reflecting release from active duty on 02SEP27)
NAVPERS 1070/613 dtd 02SEP27
NAVPERS 1070/613 dtd 02SEP26
NAVPERS 1070/613 dtd 04JUN24 (Discharge from the Naval Reserves)
CNPC Millington, TN, msg 21JUN04 (Separation Authority) 
E-mail from NMCRC Norfolk
E-mail from NRC Asheville
NRC Asheville RE code waiver request addressed to CNPC Millington, dtd 19AUG04
Applicant’s Advancement profile sheet dtd 30OCT03

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	980424 - 980927	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  980928		Date of Discharge:  040624

Length of Service (years, months, days):

	Active:    04  00  00
	Inactive:  01  08  27

Age at Entry:  18		Years Contracted:  4  (with Reserve Obligation 
                                                                                             Termination Date of 060423)

Education Level:  12			AFQT:  18

Highest Rate:  DC3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF*		Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, NDSM

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

Chronological Listing of Significant Service Events:

000413:	NJP for violation of UCMJ, Article 92:  Dereliction in the performance of duties.
	Award:  $250.00 fine, extra duty for 45 days.  No indication of appeal in the record.

000808:	NJP for violation of UCMJ, Article 92:  Failure to obey a lawful order; violation of UCMJ, Article 134:  Incapacitation in the proper performance of duties.
	Award:  Oral reprimand, restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

020927:	Released from active duty to Naval Reserve to serve until Reserve Obligation Termination Date 2006APR23 by reason of “Completion of Required Active Service, having served 4 years of active duty.”  Received characterization of service as “Honorable.”

020928:	Applicant, being a member of the Ready Reserve, requested Inactive Duty Training order for assignment in Drill Pay status in MIUW206, Norfolk VA.

020928:	Non Self Admittance to Civil Offense:  Applicant did not self admit to past criminal activity and is considered a good risk for assessment [with the Naval Reserve].

021004:	Naval and Marine Corps Reserve Center, Norfolk, VA, approved Applicant’s request for drill status and directed he report NLT 5 October 2002 to N&MCRC Norfolk for Naval Reserve Indoctrination.

031017:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service possible as a general (under honorable conditions) by reason of defective enlistment and induction due to fraudulent entry.

031017:	Applicant advised of 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 and to submit a written statement.

031017:	Applicant’s Statement:  “I P_ K. L_ (Applicant) (SSN deleted) am writing this statement of my own free will.  This statement was requested in reference to events that occurred on July 9th 2002; on that date I was involved in a DUI and Hit and Run.  The DUI was a misdemeanor and the Hit and Run was a felony.  On October 9th 2002 I was convicted of both charges.  Since my conviction and release from jail I have attended alcohol abuse counseling and worked to overcome my mistake.  In the past year I have been awarded or acknowledged of my efforts both personally and professionally.”

040128:	Commanding Officer recommended entry level separation by reason of defective enlistment and induction due to fraudulent entry.

040621:	CNMPC directed the Applicant's discharge with a general (under honorable conditions) 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 20040624 with a general (under honorable conditions) 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 characterization of service was proper and equitable, but that the Applicant was improperly assigned the narrative reason for separation (C and D).

Issue 1.  A characterization of service of under honorable conditions (general) 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 two nonjudicial punishments for failure to obey orders and his failure to divulge his arrest with a pending court date during the application process to affiliate with his reserve unit.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service.  An upgrade to honorable is inappropriate.   Relief to the characterization of service is therefore denied.

The Applicant’s affiliation with a reserve unit upon his release from active duty occurred within the terms of his original enlistment contract.  Since the Applicant affiliated with a reserve unit, and did not have to enter into an additional enlistment, his failure to divulge his arrest and pending court date did not constitute a fraudulent entry.  The narrative reason for separation is therefore changed to secretarial authority.

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 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), re-issued October 2002, effective 22 Aug 02 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