ex-MA3, USN
ND07-00307

Current Discharge and Applicant’s Request

Application Received:  20070105	Characterization Received:  
Narrative Reason:  MISCONDUCT - FRAUDULENT ENTRY INTO MILITARY SERVICE  
Authority:  MILPERSMAN 1910-134

Applicant’s Request:	Characterization changed to:  
			Narrative Reason changed to: 

Applicant’s Issues:	1. Change RE-4 Code to RE-3 
			2. Discharge Unwarranted-isolated incident
			3. Post service 

Decision

By a vote of  the Characterization shall  .	
By a vote of  the Narrative Reason shall read “Fraudulent Entry”.

Date:  20071011  					Location:  Washington D.C. 	

Discussion

Issue 1.  The Board does not have the authority to grant the relief Applicant is seeking.  Therefore, the Applicant is directed to the Addendum for information regarding Reenlistment/RE-code.  

Issue 2.   ()  The Applicant contends that his discharge was inequitable since it was based on one isolated incident of fraudulent conduct during six years of otherwise honorable service. The NDRB advises the Applicant that despite a service member’s prior record of service, certain offenses, even though isolated, warrant separation from the Navy in order to maintain proper order and discipline.  The investigation substantiates that Applicant made a false statement to his recruiter regarding the number of dependents he claimed and but for his misrepresentation of facts, the Applicant would not have been allowed to reenlist in the Navy.  Additionally, the allegations of bigamy were substantiated.  The Investigator also concluded that: 1) the Applicant failed to inform the recruiter that legal charges were pending against him, and 2) he added his name to a lease agreement without the authorization of his second wife who had entered into the agreement with her landlord over a year ago.  All of this evidence was considered by the separating authority.  The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the characterization of service and/or the reason for discharge if such change is warranted.  Evidence of the Applicant’s fraudulent enlistment is clearly documented.  There is no evidence of impropriety or inequity in the Applicant’s discharge.  

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.  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 no documentation of post-service accomplishments.  The Applicant's efforts need to be more encompassing.  For example, the Applicant mentioned that he is a year away from completing a Bachelor of Science Degree in Information Systems Security.  However, he failed to produce evidence of educational pursuits.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that the evidence of post-service conduct was not sufficient to mitigate the conduct which precipitated the discharge nor was it sufficient to warrant an upgrade in the characterization.

Although not raised by the Applicant, the Board noted that the member had served a total of six years and nine months on active duty /inactive reserve when he was notified of Administrative Processing.   Pursuant to the MILPERSMAN 1910-400, the member had a right to elect an administrative board since he had six or more years of active and reserve military service.  Based on the entry made on the Administrative Separation Notification Procedure form dated 2 Nov 02 and the transmittal letter dated 15 Nov 02, the Board has concluded that the command did not consider the Applicants reserve time in determining the total years of service.  Consequently, he was erroneously credited for only a total of five years and ten months of service.  As a result of the miscalculation, the Applicant was erroneously notified that he was not entitled to an administrative board.  This was a procedural error.  However, upon reviewing the record, the board determined that the rights of the Applicant were not prejudiced as a result of this error since it was substantially unlikely that the chararacterization of discharge would have changed had the error not occurred.  Since the Applicant was not prejudiced by the command’s error, the Applicant’s characterization of discharge is unchanged.
 
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 error(s) on the original DD Form 214:

	  “FRAUDULENT ENTRY INTO MILITARY SERVICE”
	
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)	19951228 - 19960310  		
			20010911 - 20031227  HON
Active:   		19960311 - 20010910  

Period of Service Under Review:
Date of Enlistment: 20020701	Years Contracted:  ; Extension:    		Date of Discharge:  20021213
Length of Service:  0  Yrs  5  Mths  13  Dys	Lost Time:  Days UA:    Days Confined:  
Education Level: 	Age at Enlistment:  24	AFQT:  44	Highest Rank/Rate:  MA3
Evaluation marks (# of occasions):	Performance:  NOB	Behavior:  NOB	  
Awards and Decorations (per DD 214):  ARMED FORCES EXPEDITIONARY MEDAL; ARMED SERVICE MEDAL; SEA SERVICE DEPLOYMENT RIBBON (2); NAVY GOOD CONDUCT MEDAL; NATIONAL DEFENSE SERVICE MEDAL; NAVY AND MARINE CORPS ACHIEVEMENT MEDAL.

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

20020904:	Command Investigation into the circumstances surrounding allegations of fraudulent entry into the Naval Service and Bigamy in regard to Applicant.  Findings: Allegations substantiated and noted that Applicant also altered a lease agreement.  Investigating officer recommended discharge of the Applicant.

Discharge Process

Date Notified:					20021104
Reason for Discharge:
 - 
 - 
	
Least Favorable Characterization:	

Date Applicant Responded to Notification:		20021104
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			  (20021112)
	Administrative Board			
	GCMCA review				

Commanding Officer Recommendation (date):	 (20021115)
Separation Authority (date):	CDR, Navy Region Southwest (20021203)
              Reason for discharge directed:	 
              Characterization directed:	
Date Applicant Discharged:	20021213

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), re-issued October 2002, effective 22 August 2002 until 25 January 2004, 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.

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