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

FOR OFFICIAL USE ONLY

ex-MA2, USN
Docket No. ND06-00443

Applicant’s Request

The application for discharge review was received on 20060131.  The Applicant requests the Discharge 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.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20061206.  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 General (Under Honorable Conditions) by reason of defective enlistment and induction due to fraudulent entry.

The NDRB did note administrative error(s) on the original DD Form 214.  Block 25, Separation Authority, should read:  “MILPERSMAN 1910-134.”  The Commander, Navy Personnel Command, Millington, TN, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application and/or attached document/letter:

“I put I did not smoke pot to F.B.I Agent five years ago.  I then was scared on polygraph, I was abused by polygrapher.  I then told him I smoked pot

To Whom it may concern:

I V_ E_ (Applicant) was discharged from the U. S. Navy on May 10th 2004.  I was given a General Honarable discharge and a RE-4 code.  Please be advised that this discharge has blackballed me.  I have been in the civilian life for over eight months.  Many security companies have turned me down due to this discharge.  I made a mistake not telling the F. B. I that I smoked pot.  They then disqualified me for checking off a box.  But when I went to the U.S. Navy my recruiter told me not to worry about this.  However about only two years later I was told by a Intel officer that they found out about this statement.  I was in a special operations group so I could not hold a secret clearance.  That caused them to get me out of U.S. Navy.  I did not finish contract and did not receive unemployment.  In addition I was interogated in U.S. on job interview as to my discharge.  Also I received very good ratings in Navy.  I’m now a peace officer and this may effect my job.  They can terminate me.  I also am considering joining U. S. Coast Guard Reserves.  I wanted to see if I can (1) change my General Honorable discharge, (2) change my reenlistment code of RE-3.  I was proud to serve but I have been punished by this and have been on good conduct on my present job.  Please send information to:
V_ E_
(Applicant’s address deleted)
(Applicant’s telephone number deleted)

Sincerely yours

[signed]”

Documentation

In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:

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)	20021029 - 20030514	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20030515		Date of Discharge:  20050310

Length of Service (years, months, days):

	Active:    01  09  26
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  28

Years Contracted:  4 (12-month extension)

Education Level:  14				AFQT:  32

Highest Rate:  MA3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.0 (1)		Behavior:  3.0 (1)		OTA:  2.50

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

050216:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of commission of a serious offense, violation UCMJ Art. 107, false official statement, and fraudulent enlistment.

050216:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

050217:	Commanding Officer, Mobile Security Squadron SEVEN, directed the Applicant's discharge with a general (under honorable conditions) by reason of fraudulent entry into military service.

050304:	Applicant found medically fit for separation.

Service Record contains a partial Administrative Discharge package. 
Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20050310 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 the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).  The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (D).

The Board noted that the underlying factual basis for the Applicant’s discharge was not contained in the service record.  Based on the proposed bases for separation of which the Applicant was notified and on the Applicant’s acknowledgment in his petition of having provided false information about his preservice drug use, the Board concluded that a factual basis existed for the discharge.  The Applicant alleged that his recruiter told him “not to worry about this”.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of 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 through the recruitment process.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  Relief denied.  

The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  Neither does the Board have any jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces.  Therefore, NDRB is not authorized to change a reenlistment code.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided any post-service documentation to consider mitigating the misconduct that resulted in the characterization of discharge.  Relief denied.

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 additional evidence related to this 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 2 May 2005, 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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 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