ex-JO2, USN
ND07-00255

Current Discharge and Applicant’s Request

Application Received:  20061229 	Characterization Received:  
Narrative Reason:  FRADULENT ENTRY INTO MILITARY SERVICE (OTHER) Authority:  MILPERSMAN 1910-134

Applicant’s Request:	Characterization change to:  
			Narrative Reason change: 
Applicant’s Issues:	1.  Singled out by Command.
			2.  Fraudulent enlistment based on incident for which never convicted
			3.  Post Service – nearing completion of MBA

Decision

By a vote of  the Characterization shall  .	
By a vote of  the Narrative Reason shall  FRAUDULENT ENTRY INTO MILITARY SERVICE.

Date:  20071002  					Location:  Washington D.C. 	

Discussion

Issue 1 ():  In the Applicant’s letter to the Board he states that he was singled out and targeted by his command.  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 claim.  There is no evidence in the record, nor has the Applicant produced any evidence, to support his contention of unfair treatment.  However, even if the Applicant could document his claims this would neither amount to a justification nor to a defense for the Applicant’s own misconduct.  The record reflects his willful misrepresentation of the facts concerning his prior service arrest and financial records.  The Naval Military Personnel Manual, (NAVPERS 15560C) states that members may be separated for effecting a fraudulent enlistment, or period of service by falsely representing or deliberately concealing any disqualifications prescribed by law, regulation, or order.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. 

Issue 2 ():  With regard to the Applicant’s contention that his discharge for fraudulent enlistment is based on an incident for which he was never convicted.  The Applicant’s discharge was not based upon the alleged offenses but the attempt to conceal and mislead the Navy with respect to his prior service history by providing false information on two occasions when submitting the SF-86 security investigation questionnaire.  This incomplete and less than truthful disclosure of the Applicant’s history forms the basis for his administrative discharge based upon fraudulent entry into military service.  The Board could discern no impropriety or inequity and therefore considers his discharge proper and equitable.  

Issue 3 (Equity):  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, 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 the civilian life subsequent to leaving the service.  Normally, to permit relief a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered.  The Applicant provided letters of recommendation, a diploma from American Intercontinental University, a Maryland criminal history check, and his statement to the board as documentation of his post-service accomplishments.  The Board determined that the documentation provided by the Applicant did not mitigate the misconduct which resulted in the Applicant’s discharge and the characterization of his service.  

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, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that  

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative errors on the original DD Form 214:

	  “FRAUDULENT ENTRY INTO MILITARY SERVICE ”
	  “Continuous Honorable service from 00 May 21 until 02 Dec 31”
	
The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate. 

Summary of Service

Prior Service:
Inactive: USNR (DEP)	20000420 - 20000521  		Active:   	20000522 - 20021231  
Period of Service Under Review:
Date of Enlistment: 20030101	Years Contracted:  ; Extension:  23	Date of Discharge:  20051114
Length of Service:  02 Yrs 10 Mths 13 Dys			Lost Time:  
Education Level:  	Age at Enlistment:  	AFQT:  57	Highest Rank/Rate:  JO2
Evaluation marks (# of occasions):	Performance:  3.2		Behavior:  3.0	 OTA:  3.46 (5) 
Awards and Decorations (per DD 214):  NAVY GOOD CONDUCT MEDAL, MERITORIOUS UNIT COMMENDATION(2), ARMED FORCES EXPEDITIONARY MEDAL, NATIONAL DEFENSE SERVICE MEDAL(2), SEA SERVICE DEPLOYMENT RIBBON(2), GLOBAL WAR ON TERRORISM SERVICE MEDAL, GLOBAL WAR ON TERRORISM EXPEDITIONARY MEDAL, GLOBAL WAR ON TERRORISM EXPEDITIONARY MEDAL ENLISTED SURFACE WARFARE SPECIALIST, ENLISTED AVIATION WARFARE SPECIALIST

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

20030101:	Applicant reenlisted for 2 years.

20030103:	Viol UCMJ Art. 107 - With intent to deceive, sign an official document (SF-86), failed to disclose all information pertaining to his background namely previous arrests and debts prior to naval service. [Extracted from Commanding Officer’s letter dated 20051026].

20030208:	Applicant extended enlistment 15 months, new EAOS 20060331.

20040220:	Applicant failed PRT (height / weight standards), body fat 24%. 

20040426:	Viol UCMJ Art. 107 - With intent to deceive, sign an official document (SF-86), failed to disclose all information pertaining to his background namely previous arrests and debts prior to naval service. [Extracted from Commanding Officer’s letter dated 20051026.].

20041129:	Applicant extended enlistment 11 months, new EAOS 20051130

20050304:	Applicant extended enlistment 12 months, new EAOS 20061130.

20051017:	Applicant notified of intended administrative separation by reason of misconduct due to the commission of a serious offense and by reason of defective enlistment and induction (fraudulent entry into naval service) with the least favorable characterization of service as general (under honorable conditions).

20051025:	Commanding Officer, Naval Submarine Base, Kings Bay, GA reports to Commander, Navy Region Southeast the Applicant’s discharge.   Commanding Officer’s statement, “JO2 S_ (Applicant) has been a good worker, however his dishonesty has made him less of an asset and untrustworthy.  The documents enclosed are just examples of his continuous disregard for the Navy’s rules and regulations.  I do not recommend member for transfer to Individual Ready Reserve.

Discharge Process

Date Notified:					20051017
Reason for Discharge:	 - 
	 - 
Least Favorable Characterization:	

Date Applicant Responded to Notification:		20051024
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement				ELECTED
	GCMCA review				

Commanding Officer Recommendation (date):	Commanding Officer, Naval Submarine Base, Kings Bay, GA; General (under honorable conditions).
Separation Authority (date):	COMMANDER, NAVY REGION SOUTHEAST (20051102)
              Reason for discharge directed:	 - 
              Characterization directed:	
Date Applicant Discharged:	20051114

Types of Documents Submitted by Applicant and Considered By Board

Related to Military Service:	Service and/or Medical Record:  		Other Records:  

Related to Post-Service Period:  	
	Employment:  			Finances:  			Education: 		
	Health/Medical Records:  		Substance Abuse:			Criminal Records:  	
	Family/Personal Status: 		Community Service:  		References:  		
	
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 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 107.

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 to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC  20301-4000.  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