ex-AN, USN
ND06-01112

Current Discharge and Applicant’s Request:

Application Received:  				20060822     
Reason for Separation:		DEFECTIVE ENLISTMENTS AND INDUCTIONS - FRAUDULENT ENTRY INTO THE NAVAL SERVICE
Character of Service:				
Discharge Authority:				MILPERSMAN 1910-134
Last Duty Assignment/Command at Discharge:	USS ENTERPRISE (CVN 65) HP: NORFOLK, VA

Applicant’s Request:
	Narrative Reason change to:		NOT APPLICABLE
	Characterization change to:		
	Review Requested:			
	Representation: 				
	Issues (as summarized by NDRB):		1. Disclosed 4 times of marijuana use, should have received moral waiver

Decision:

Date of Decision:					20070719
Location of Board:				Washington D.C.
Complete Service Record:				
Complete Medical Record:			
Complete Discharge Package:			

Regarding propriety, the Board found the discharge:	
Regarding equity, the Board found the discharge:	

By a vote of  the Characterization shall  .	
By a vote of  the Reason for Discharge shall  DEFECTIVE ENLISTMENTS AND INDUCTIONS - FRAUDULENT ENTRY INTO THE NAVAL SERVICE

Summary of Service:

Prior Service:
Inactive: USNR (DEP)				19960812-19970623 ELS (failed to graduate high school)
Inactive: USNR (DEP)				20020517-20020807 
Active:   NONE 
Period of Service Under Review:
Date of Enlistment:  				20020808     
Years Contracted:  				;        
Date of Discharge:				20050203
Length of Service:				02  Yrs  05  Mos  26  Days (does not exclude lost time, if any)
Time Lost During This Period:			

Education Level:  				
Age at this Enlistment:  				
AFQT:  						36
Highest Rate/Rank:				AN

Performance Evaluation Averages (number of marks): NOT FOUND IN RECORD

Awards and Decorations (as listed on the DD Form 214):  NATIONAL DEFENSE SERVICE MEDAL, SEA SERVICE DEPLOYMENT RIBBON, GLOBAL WAS ON TERRORISM EXPEDITIONARY MEDAL.

Medical Record Entries Related to Characterization of Service or Narrative Reason for Separation

20011213:	Applicant admits to four time marijuana use during MEPS physical.  Last use March 01.

Service Record Entries Related to Characterization of Service or Narrative Reason for Separation

20020517:	Applicant checks “No” block on DD Form 1966/1, Record of Military Processing – Armed Forces of the United States, to question 26, Drug Use and Abuse, “Have you ever tried, used, sold, supplied, or possessed any narcotic (to include heroin or cocaine)…or cannabis (to include marijuana or hashish)…except as prescribed by a licensed physician?”

20040511:	Director, Department of the Navy Central Adjudication Facility (DONCAF) informs Applicant of intent to deny security clearance.  Summary of disqualifying information:  Security guideline Personal Conduct; drug involvement, criminal conduct:
	20010501:  …arrested for Battery…case ruled stricken on leave.
	20010905:  …arrested for Retail Theft and Possession of Drug Paraphernalia…pled guilty to Retail 		Theft…(possession) charge…stricken on leave…sentenced to six months supervision.
	20020619:  ...Security Clearance Application revealed: …used marijuana four times from 19980704 to 	20010301…answered “no” to question #20, denying having been fired from a job…answered 	“no” to question #29, denying have been involved in the illegal purchase, manufacture, 	trafficking, production, transfer, shipping, receiving or sale of any narcotic for own intended 	profit.
	20030325:  …signed statement disclosed:
		-…used crack cocaine from June 2000 to September 2000…early part of experimentation with 	   	   crack…used almost daily;
		- …May/June 2001…charged with Aggravated Battery of Assault, a felony offenses…charges 	 	   dropped. 
		- …terminated from job as grounds crew member at Wrigley Field…a result of fight which led 	  	   being charged with Aggravated Battery or Assault.
		- …October 2001…arrested and charged with Retail Theft and Possession of Drug 	 	 	   Paraphernalia…recollection charges dropped and parents paid court costs.
		- …first used marijuana as freshman in high school and last used marijuana approximately one 	 	  year before joining military…used daily during freshman and sophomore years…junior year on 	  and off again…every other week during fourth year…
		- …used cocaine every other month freshman to senior year in high school.
		- …purchased marijuana approximately 20 times and sold marijuana at least 30 times for profit.
		- …purchased crack cocaine numerous times.
		- …purchased cocaine on one or two occasions and sold cocaine approximately 10 to 15 times 	 	   for profit.
		- …knowingly provided false information on security questionnaire because wanted to join 	 	   military.

20040621:	Commander, Navy Personnel Command, notifies Commanding Officer, USS Enterprise (CVN 65) of DONCAF intent to deny/revoke Applicant’s security clearance and that Applicant failed to disclose drug involvement on the SF-86 completed when enlisting in the Navy.  Command directed to determine whether to suspend the Applicant’s access to classified material while clearance denial/revocation action is pending and to address the issue of fraudulent enlistment, which carried two options: (1) fraudulent enlistment separation processing, or (2) waiver of fraudulent enlistment.

20040910:	COMNAVPERSCOM, via naval message, requests Commanding Officer, USS Enterprise investigate Applicant’s possible fraudulent enlistment and initiate administrative separation processing or request waiver of administrative separation processing from GCMCA or COMANVPERSCOM.

Elements of Discharge:  [INVOLUNTARY]

Discharge Process:				NOT FOUND IN RECORD
	Date Notified:			     
	Reason for Discharge:
	Least Favorable Characterization:	

Date Applicant Responded to Notification:		NOT FOUND IN RECORD     
Rights Elected at Notification:
Consult with Counsel			
Administrative Board			
Obtain Copies	  			
Submit Statement(s) (date)			
GCMCA Review				

Administrative Board Date:			NOT FOUND IN RECORD     
Commanding Officer Recommendation (date):	NOT FOUND IN RECORD
Discharge directed by (date):			NOT FOUND IN RECORD
	Reason directed:				DEFECTIVE ENLISTMENTS AND INDUCTIONS - FRAUDULENT 								ENTRY INTO THE NAVAL SERVICE
	Characterization directed:			GENERAL (UNDER HONORABLE CONDITIONS)
Date Applicant Discharged:			20050203     

Additional Information Considered by Board

Type of documentation submitted by the Applicant and considered by the Board
       
       	Document Type					#Pages
       Related to Period of Service Under Review:
	Service/Medical Record:				8     
	Other Period of Service:				0     
       Related to Post-Service Period:
	Community Service:				0     
	Education:					0     
	Employment:					0     
	Health/Medical:					0     
	Character Statements:				0     
	Criminal Records Checks:				0     
	Additional Statements from Applicant:		1     
        Other Documentation	 (Describe Below)		2     

        Total Number of Pages:				11     

       Description of Other Documentation:  DD Form 149     

Issues (as summarized by NDRB):

1. Disclosed 4 times of marijuana use, should have received moral waiver 

Decisional Issues:

Issue 1 ().  There is credible evidence in the record that the Applicant did not fully disclose his pre-service drug use and involvement prior to entering the Navy and that such use was extremely more extensive and prolonged than the claimed “4 times marijuana use” the Applicant falsely acknowledged.  Members may be separated for effecting a fraudulent enlistment, induction, or period of service by falsely representing or deliberately concealing any qualifications or disqualifications prescribed by law, regulation, or order.  The Board advises the Applicant that fraudulent enlistment is considered a serious offense in violation of Article 83 of the UCMJ, for which a punitive discharge is authorized upon conviction at special or general court-martial.  Relief is not warranted on this issue.

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  Specifically in this case, the Board presumed that the Applicant was properly notified of the reason for discharge, his rights in response, and that his discharge was approved by appropriate authority.  After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, Medical Record Entries, Elements of Discharge and evidence submitted by the Applicant, the Board found the Applicant’s discharge proper and equitable.

Minority Opinion

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 2002 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 II, Para 211, Regularity of Government Affairs, Part V, Para 502, Propriety and Para 503, Equity.

C.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 83, Fraudulent enlistment, appointment, or separation.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  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.”

Additional Reviews:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the 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.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

Employment/Educational Opportunities:  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.  

Reenlistment/RE-code:  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.  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.

Medical Conditions and Misconduct:  DoD disability regulations do not preclude a disciplinary separation.  Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons.  Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record.  Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or “PTSD.”  Only the Board for Correction of Naval Records can grant this type of narrative reason change.  

Automatic Upgrades - 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 may 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.  

Issues Concerning Bad-Conduct Discharges (BCD) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief.  With respect to a discharge adjudged by a court-martial, the action of the NDRB is restricted to upgrades based on clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  

Board Membership:  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