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

FOR OFFICIAL USE ONLY

  ex-STSSN, USN
Docket No. ND05-00812

Applicant’s Request

The application for discharge review was received on 20050406.  The Applicant requests that his characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.  Subsequent to the application, the Applicant obtained the Veterans of Foreign Wars as the representative.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051117.  After a thorough review of all available 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 characterization of the discharge shall not change.  The discharge shall remain General (Under Honorable Conditions) by reason of defective enlistment and induction due to fraudulent entry.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“I WAS DISCHARGED FOR FRAUDULENT ENLISTMENT DUE TO MY SLEEPWALKING BUT I INFORMED MY RECRUITER ABOUT IT.  HE ASKED IF IT HAD HAPPENED IN A WHILE, IT HADN’T, SO HE TOLD ME NOT TO SAY ANYTHING AND I FOOLISHLY FOLLOWED HE INSTRUCTION.  NOT KNOWING THE DANGERS OF IT.”

Additional issues submitted by Applicant’s representative (Veterans of Foreign Wars):

“Propriety or Equity Issue(s):  The Applicant was instructed to lie on his entrance physical by his recruiter.

Statement:  In accordance with 32 CFR § 724, and SECNAVINST 5420.174D, the Veterans of Foreign Wars submits to the Naval Discharge Review Board (NDRB) the above issue and following statement in supplement to the Applicant’s petition

The Applicant in this case is a young man whose zeal to serve his country led him to enlist in the United States Navy and volunteer for submarine duty- one of the most dangerous occupations in the United States Armed Forces.

The Applicant attests that he was instructed by his recruiter, a Non-Commissioned Officer of the United States Navy, to disavow any history of sleepwalking as the recruiter knew it would disqualify the Applicant from service.  

The recruiter was a respected senior to the Applicant.  By advising the applicant to lie at his entrance examination, the recruiter suborned the Applicant’s fraudulent enlistment.

The issue here is equity.  When a civilian follows the illegal directives of a Non-Commissioned Officer, the fault lies with the NCO.  The civilian knew no better.  The relationship between civilian and recruiter is analogous to a romance between junior enlisted and senior NCO.  While both parties may be tacitly at fault, there is clearly a coercive factor which serves to mitigate the junior partner’s conduct.

The Veterans of Foreign Wars’ express purpose in providing this statement and any other submittals or evidence filed is to assist this applicant in the clarification and resolution of the impropriety or inequity raised.  To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by title 10 USC § 1553, and set forth in 32 CFR § 724 and SECNAVINST 5420.174D.

This case is now respectfully submitted for deliberation and disposition.”

E_ S_
Military Claims Consultant
National Verterans Service

Applicant’s Remarks:  (Taken from the DD Form 293.)

I WILL NEVER FORGET MY TIME IN THE NAVY I JUST WISH IT COULD’VE BEEN LONGER

ALL I WANTED WAS TO SERVE ON A U.S. SUBMARINE.  AND MY RECRUITER USED THAT TO BOOST HIS NUMBERS.  I SHOULD HAVE NEVER BEEN IN THE NAVY BECAUSE OF HOW DANGEROUS IT WAS.  HAD I KNOW THAT I WOULD NEVER HAVE WASTED THE NAVYS TIME AND EFFORT.

Documentation

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

Certification from DeKalb County Recorder, dtd March 15, 2005
Applicant’s DD Form 214 (Member 1 and 4)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20000518 - 20010103	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20010104		Date of Discharge:  20021216

Length of Service (years, months, days):

	Active:    01 01 13
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  19

Years Contracted:  4

Education Level:  12				AFQT:  61

Highest Rate:  STSSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.0 (2)			Behavior:  3.0 (2)		OTA:  3.09

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal

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

GENERAL (UNDER HONORABLE CONDITIONS)/FRAUDULENT ENTRY INTO MILITARY SERVICE, authority:  MILPERSMAN, Article 1910-134 (formerly 3630100).

Chronological Listing of Significant Service Events: 

000518:	Report of Medical History:  Applicant marked “No” to Block 9 question, “have you ever been a sleepwalker”.

010205:	Report of Medical History:  Applicant marked “No” to Block 9 question, “have you ever been a sleepwalker”.

010430: 	Report of Medical History:  Applicant marked “No” to Block 9 question, “have you ever been a sleepwalker”.

020405:	Chronological record of medical care: Applicant complaining of sleepwalking.  Refer to UMO for eval and possible disqual from submarine service.

020408:	UMO recommendation for Disqualification:
History of Present Illness: Applicant was found sleeping approximately 40 feet from his rack on the boat by the duty section.  On the two subsequent nights, when not on duty, he awoke on the floor outside the shared barracks head.  He did not have any recollection of arising or moving on any of these occasions.  When questioned further, he reports having somnambulated twice in boot camp within the barracks area and repeatedly over a 1-2 week period as a teenager.  On one of these occasions, he awoke outside under a tree.
	Prognosis and Recommendations: The patient is not physically qualified for submarine duty due to a history of sleepwalking.  His activities pose a significant danger to himself and the mission.  A waiver for submarine duty is not recommended.  The patient is not nuclear-trained.

020410:	Commanding Officer USS Maine (SSBN 741) (Blue) to Commander, Submarine Force, U.S. Atlantic Fleet, recommendation for disqualification for duty in submarines.  Applicant evaluated by Submarine Squadron 16 Medical Officer and was found to be physically not qualified for assignment in submarines.  Applicant has a documented history of sleepwalking.

021018:	Commander, Submarine Group 10 directed the Applicant's discharge with a general (under honorable conditions) by reason of defective enlistments and inductions - fraudulent entry into the naval service.

Service Record contains a partial Administrative Discharge package.  

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20021216 by reason of defective enlistment and induction due to fraudulent entry (A) with a service characterization of general (under honorable conditions).  After a thorough review of all available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).  The Board presumed regularity in the conduct of governmental affairs (D).

When the service of a member of the U.S. Navy has met the standard of acceptable conduct and performance, it is appropriate to characterize that service as honorable.  A general (under 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.  Applicable regulations require that a Sailor’s characterization of service be based upon the member’s total performance of duty and conduct during the current enlistment.  Furthermore, there are circumstances where conduct or performance of duty reflected by a single adverse incident may form the basis for the characterization of a Sailor’s overall service.  The record documents the Applicant’s failure to officially disclose his history of sleepwalking prior to enlistment.  This validates the fraudulent entry into the military for which he was separated.  Furthermore, the record contains two additional fraudulent denials of sleepwalking while on active duty.  Separation under these conditions generally results in a less than honorable characterization.  Relief is not warranted.

The Applicant states that he was told by his recruiter not to tell anyone about his teenage sleepwalking and therefore he is not responsible.  The Applicant bears the burden of presenting substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that the recruiter misled him.  Sleepwalking disqualifies an individual from entry into the naval service due to safety reasons.  Had the history of teenage sleepwalking been known at the time of enlistment it would have reasonably been expected to affect the Applicant’s eligibility for enlistment or induction.  The record does document three separate occasions, where the Applicant denied a history of sleepwalking on medical questionnaires.  These misrepresentations document the Applicant’s willing and continued perpetration of his fraudulent enlistment.  The NDRB found no impropriety in the Applicant's service characterization based upon this issue.  Relief denied.

In the absence of an administrative discharge package, the Board presumed regularity of governmental affairs.  The Board presumed that the Applicant’s discharge was conducted in accordance with that described in reference (A).  If the Applicant feels his discharge was administratively flawed he bears the burden of establishing his issues through the presentation of substantial and credible evidence.

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 Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  The Applicant has not provided post service documentation for the Board’s consideration.

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 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 V, Para 502, Propriety.

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

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.

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