ex-SN, USN
ND07-00027

Current Discharge and Applicant’s Request:

Application Received:  				20061012
	Characterization of Service:		
	Reason for Discharge:			 - due to
						
	Discharge Authority:			MILPERSMAN 1910-134
	Duty Assignment/Command at Discharge:	USS ENTERPRISE (CVN 65) HP: NORFOLK, VA

Applicant’s Request:	
	Characterization change to:		
	Narrative Reason change to: 		EARLY SEPARATION FOR EDUCATION 
	Review Requested:			
	Representation:				
	Issues (as summarized by NDRB):		1.  Propriety/Equity – waiver request not forwarded
						2.  Propriety/Equity – Command misinformed him of options after denial 						of security clearance

Decision:

By a vote of  the Characterization shall  .	
By a vote of  the Reason for Discharge shall  .

Date of Decision:					20070816
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:	

Discussion

Issue 1 and 2. (/Equity).  The basis of the Applicant’s issues is his contention that his command mishandled the paperwork surrounding the revocation of his security clearance resulting in a discharge for fraudulent enlistment.  In May 2005, the Central Adjudication Facility made a decision to deny the Applicant’s security clearance based on his failure to disclose bad debts.  The Applicant’s command received a letter from the Commander Naval Personnel Command (NPC) informing them of the security denial and provided the command two options to resolve the issue.  The command was directed to either (1) request a waiver of the fraudulent enlistment or (2) process the Applicant for discharge.  The command chose to do neither until Jan 2006, by which time according to the Applicant, NPC would no longer accept a waiver.  The command processed the Applicant for fraudulent enlistment and discharged him locally with a general characterization.  While the discharge process was proper on its face, the NDRB finds that it was inequitable.  The command was advised to request a waiver if it was determined to be in the best interest of the Navy to retain the Applicant.  The Applicant had recently been selected for and attended OS A school.  The Applicant had also been selected for and frocked to OS3.  Further the Applicant’s evaluations reflected that he had exceeded expectations as his proficiency and conduct marks were above average.  While the Board does not condone the Applicant’s failure to disclose bad debt, it is the Board’s view that it would have been in the Navy’s interest to retain the Applicant, as the Navy had spent considerable time and expense educating him.  Discharging the Applicant with a General Discharge rather than requesting a waiver was in the Board’s opinion inequitable.  On this basis, the board granted relief to the Applicant.  The Applicant’s discharge is upgraded to HONORABLE/SECRETARIAL AUTHORITY, authority: MILPERSMAN 1910-164, Separation Code “JFF.”

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.  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 but inequitable.

Summary of Service:

Prior Service:
Inactive: USNR (DEP)				20020627 - 20020814  
Active:   					

Period of Service Under Review:
Date of Enlistment:  				20020815
Years Contracted:  				; Extension:  
Date of Discharge:				20060127
Length of Service
	Active:					03  Yrs  05  Mths  11  Dys  (does not exclude lost time)
	Inactive:					NONE
	Time Lost During This Period:		Days UA:    Days Confinement:  

Education Level:  				
Age at this Enlistment:  				
AFQT:  						67
Highest Rate/Rank:				OS3

Performance Evaluation Averages (number of marks):
				Performance: 3.8(5) Behavior: 3.6(5) OTA: 3.4

Awards and Decorations (as listed on the DD Form 214):  NATIONAL DEFENSE SERVICE MEDAL, GOOD CONDUCT MEDAL, GLOBAL WAR ON TERRORISM SERVICE MEDAL

Service Record Entries Related to Characterization of Service or Reason for Discharge

20050524:	Director, Department of the Navy, Central Adjudication Facility Letter of Intent to Deny Security Clearance.  Applicant failed to disclose adverse financial information the SF-86 completed when enlisting in the Navy.

20050608:	Letter from Commander, Navy Personnel Command (NPC) notified USS ENTERPRISE that the Applicant failed to disclose adverse financial information on his SF-86.  The command was advised to either request a waiver or process the member for administrative separation.  Central Adjudication letter of intent to deny security clearance was included as enclosure.

20050714:	Applicant acknowledged that his security clearance has been revoked/denied.

Elements of Discharge:  [INVOLUNTARY]

Date Notified:					20060112
Reason for Discharge	-FRAUDULENT ENTRY INTO NAVAL SERVICE
	
Least Favorable Characterization Authorized:	

Date Applicant Responded to Notification:		20060112
Rights Elected at Notification:
Consult with Counsel			
Obtain Copies of Documents		
Submit Statement(s) (date)			
Administrative Board			
GCMCA Review				

Commanding Officer Recommendation (date):	
Separation Authority (date):	COMMANDING OFFICER, USS ENTERPRISE (CVN 65) (20060125)
Reason for discharge directed:			 due to 
			FRAUDULENT ENTRY INTO NAVAL SERVICE
	Characterization directed:			
Date Applicant Discharged:			20060127

Additional Documents Submitted by Applicant and Considered By Board

Total Number of Pages:				5
       
Related to Period of Service Under Review:
	From Service and/or Medical Record:		Other Records:	

Related to Other Period(s) of Service:
	From Service and/or Medical Record:		Other Records:	
       
Related to Post-Service Period:
	Employment:					Finances:	
	Health/Medical Records:				Substance Abuse:	
	Family/Personal Status:				Education:	
 	Community Service Efforts:			References:	
	Criminal Records:			

Other:
	Additional Statements From Applicant:		From Representative:	
        	Other Documentation (Describe)		      

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 3 May 2005 until Present, Article 1910-134, 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 Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 3 May 2005 until Present, Article 1910-164, Separation by Reason of Best Interest of The Service (BIOTS).

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