ex-BU3, USN

Current Discharge and Applicant’s Request

Application Received: 20080418
Characterization of Service Received: 
Narrative Reason for Discharge: 
Authority for Discharge: MILPERSMAN  (FRAUDULENT ENTRY INTO MILITARY SERVICE)

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

Summary of Service

Prior Service:
Inactive: USNR (DEP)	20001117 - 20010108  		Active:   

Period of Service Under Review:
Date of Enlistment: 20010109	Period of Enlistment:   Years  12 Months  Extension	Date of Discharge:  20040623
Length of Service:    Yrs    Months  15  Days	Education Level:  	Age at Enlistment:  	AFQT:  58
Highest Rank/Rate:  BU3	Evaluation Marks:  Performance: 4.0 (3)	Behavior: 3.0 (3)	OTA:  3.48
Awards and Decorations (per DD 214):     

Types of Documents Submitted/reviewed

Related to Military Service:	DD 214:  	Service and/or Medical Record:  		Other Records:  
Related to Post-Service Period:	
	Employment:			Finances:			Education/Training:	
	Health/Medical Records:		Substance Abuse:			Criminal Records:	
	Family/Personal Status:		Community Service:		References:		
Additional Statements From Applicant:  		From Representation:  		From Member of Congress:  
Other Documentation (Describe):  
	- United States Bankruptcy Court, Southern District of Mississippi, discharge of debtor

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 
2 May 2005, 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.

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

Applicant’s Issues

1.  Change reenlistment code.
2.  Improper discharge since not convicted of any charges.
3.  Record of service.
4.  Errors in DD-214.
5.  Post service conduct.

Decision

Date:  20080829		Location:  Washington D.C.	Representation:  

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

Discussion

:  either  which the Board cannot form the basis of relief for the Applicant, or  the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum, specifically the paragraph concerning s, regarding .

: ()  .  The Applicant contends her discharge was improper since she was not charged or found guilty of any charges.  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.  The record of evidence shows the Applicant was found to have made false official statements regarding her financial status on the SF-86, Personnel Security Questionnaire, submitted at the time of her enlistment processing.  An administrative discharge for fraudulent enlistment is required in cases where a member procured a fraudulent enlistment through deliberate material misrepresentation, omission, or concealment, unless the commanding officer desires to retain the member and the defect in the enlistment documents has been corrected.  The Applicant submitted no evidence showing the commanding officer desired her retention or the defect in her enlistment documents was either in error or had been corrected.  The Board determined the discharge was properly executed based on Applicant’s financial status at that time.  The Board determined an upgrade would be 
inappropriate.

For the edification of the Applicant, making a false official statement is a violation of the Uniform Code of Military Justice, Article 107, which is punishable by a punitive discharge and up to 5 years confinement if adjudicated by a special or general court-martial.  The command did not pursue a punitive discharge and opted instead for an administrative separation. 

: ()  .  The Applicant contends her discharge should be upgraded because her record of service was excellent and her reporting senior in his final evaluation, covering 30 November 2003 until 23 June 2004, stated the occasion for the report was the member’s honorable discharge from active Naval service.  A “General (Under Honorable Conditions)” characterization is warranted when the quality of the member’s service has been honest and faithful; however, significant negative aspects of the member’s conduct or performance of duty outweighed positive aspects of the member’s service record.  This characterization of service may be awarded based on a review of a Sailor’s overall service record.  While the Applicant’s reporting senior stated on the evaluation the discharge was “Honorable”, the Commanding Officer’s determination and recommendation was for a “General (Under Honorable Conditions)” discharge.  The statement by her reporting senior in no way obligated the Commanding Officer to characterize the Applicant’s service as “Honorable.”  The Board determined an upgrade would be inappropriate.

Issue 4:  The Applicant contends her DD-214 contains several errors regarding awards and qualifications.  As discussed in paragraph 3 above, her discharge was properly characterized as “General (Under Honorable Conditions).”  The Applicant is directed to the Addendum, specifically the paragraph concerning , regarding .  The NDRB is not authorized to recommend changes to the DD-214 except those related to the characterization and reason for discharge.  The 

Board for Correction of Naval Records has the authority to make the desired changes to the DD-214 providing the Applicant provides adequate information or supporting documentation to the BCNR.

Issue 5: ()  .  The Applicant contends her discharge should be upgraded due to her post-service conduct.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, there is no law or regulation, which provides 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 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 during Board reviews.  Supporting documentation to help support a post service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card company’s, or other financial institutions; documentation of a drug free lifestyle; and character witness statements.  The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case by case basis to determine if post service conduct mitigates the reason for the characterization of discharge. 

The Applicant provided a statement in her DD Form-293 showing her debts have been discharged by a Chapter 11 filing.  In order to gain an “Honorable” characterization upgrade the Applicant's post service efforts need to be more encompassing.  The Applicant could have produced additional evidence as stated in the above paragraph with the full understanding completion of these items alone does not guarantee an upgrade. The Board determined based on the documentation provided an upgrade would be inappropriate and the characterization of service received, “General (Under Honorable Conditions)”, was appropriate.  

After a thorough review of the available evidence, to include the Applicant’s Summary of Service,   Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found 

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 or is referred to a court martial 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 other medical related reasons.  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 special 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.  The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

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