ex- ISSN, 

Current Discharge and Applicant’s Request

Application Received: 20170814
Characterization of Service Received:   
Narrative Reason for Discharge:   FRAUDULENT ENTRY (DRUG ABUSE)
Authority for Discharge:   MILPERSMAN 1910-134 [FRAUDULENT ENTRY INTO NAVAL SERVICE] 

Applicant’s Request:	Characterization change to:	
Narrative Reason change to: CONVENIENCE OF THE GOVERNMENT
Reentry Code change to: NONE REQUESTED

Summary of Service

Prior Creditable Service:
Inactive:	 	             	Active:	 

Period of Service Under Review:
Date of Enlistment:  20000708	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20040205	Highest Rank/Rate:  IS3
Length of Service:   Year(s)     Month(s)   08 Day(s)
Education Level:  	AFQT:  62

Evaluation Marks (# of occasions):  Performance/Proficiency: 3.0 (3)   Behavior/Conduct: 2.3 (3)   OTA: 2.72 
Fitness Reports: 

Awards and Decorations (per DD 214):	NDSM 

Period of UA:  20031023 - 20031103, 10 days
Periods of CONF:  NONE
Other Time Lost per DD214:  20031023 - 20031103, 10 days

SCM:    SPCM:    CIVIL ARREST:    CC:  

NJP:  

- 20030923:	Article 92 (Failure to obey order, regulation) 
	Article 128 (Assaults)
	Article 134 (General article) Conduct to of a nature. 
	Awarded:       Suspended:      

Retention Warning Counseling:  

- 20030923:	For violation of UCMJ, Article 92, failure to obey order; Article 128, assault; and Article 134, general article, conduct to of a nature. 

NDRB Documentary Review Conducted (date):	20060316
NDRB Documentary Review Docket Number:	ND05-01021
NDRB Documentary Review Findings:		Proper as issued and that no change is warranted.

Types of Documents Submitted/reviewed

	DD 214:		Service/Medical Record:		Other Records:	
	Employment:		Finances:		Education/Training:	
	Health/Medical Records:		Rehabilitation/Treatment:		Criminal Records:	
	Personal Documentation:		Community Service:		References:	
	Department of VA letter:		Other Documentation:	

Additional Statements

	From Applicant:		From/To Representation:		From/To Congress member:	

Types of Witnesses Who Testified

	Expert:  			Character:    

	Witness E-1:			Witness C-1: Troy Schielein 	
	Witness E-2:			Witness C-2: Jordan Fulton
				Witness C-3: Michael Del Rosso
				Witness C-4: Richard Graham III
				Witness C-5: Shelby Caldwell

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560D), 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 IV, Para 403m(7)(a), Presumption Concerning Court-Martial Specifications.

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

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Secretarial Review Authority Directed Decision

On December 18, 2019, the Secretarial Review Authority (SRA) determined an upgrade was not warranted and that the Applicant’s discharge shall remain UNDER OTHER THAN HONORABLE CONDITIONS.

On 10 October 2019, following a personal appearance hearing, the NDRB voted unanimously to upgrade the Applicant’s characterization of service to General (Under Honorable Conditions).  The Board found the characterization of service assigned to the Applicant was inequitable given the isolated nature of his misconduct and his overall record of service.  The Board determined the reason for discharge (Fraudulent Entry) appropriately described the basis for the Applicant’s discharge.

The stated reasons for the SRA decision were as follows: 

I [SRA] disagree with the decision to grant relief based on Applicant’s Issue #2 and #3 (the characterization of service was inequitable and military record and post-service conduct warrants an upgrade).  In addition to failing to disclose a pre-service criminal record upon his enlistment, the Applicant’s record also shows he was awarded non-judicial punishment (NJP) for violation of UCMJ Articles 92 (failure to obey order), 128 (assault), and 134 (conduct prejudicial to good order and discipline).  Based on the Applicant’s failure to disclose serious pre-service offenses upon enlistment, the offenses for which he was awarded NJP, and his subsequent unauthorized absence following his NJP, I [SRA] did not find his conduct was isolated or that his approximately four years of military service, or post-service record, mitigated his misconduct.  The Applicant’s actions were a significant departure from the conduct expected of a member of the naval service and warranted an Under Other Than Honorable characterization of service.    

In summary, the SRA determined the Applicant’s discharge shall remain UNDER OTHER THAN HONORABLE CONDITIONS.

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Applicant’s Issues

1.	The discharge is improper in that the UOTH in the first place violated procedural due process and MILPERSMAN.  
2.	The continuing UOTH characterization is inequitable.  
3.	The Applicant’s military service and post-service civilian accomplishments warrant an upgrade.  

Discussion

Date:  20191010		Location:  WASHINGTON D.C.	Representation:  

The Naval Discharge Review Board (NDRB), under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted.  In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Board completed a thorough review of the circumstances that led to the discharge and the discharge process to ensure the pertinent standards of equity and propriety were met.

The Applicant's record of service included:

  for  of the Uniform Code of Military Justice (UCMJ): 
Article 92 (Failure to obey order, regulation) 
Article 128 (Assaults)
Article 134 (General article)

Based on the serious omissions made by the Applicant during his enlistment, the command administratively processed the Applicant for separation. When notified of administrative separation processing, the Applicant  his rights to consult with a qualified counsel, submit a written statement, and request an Administrative Separation Board.  

:  The Applicant contends the discharge is improper in that the UOTH in the first place violated procedural due process and MILPERSMAN.  The Applicant refers to several perceived improprieties in the processing of the Applicant’s separation.  While the record is not entirely complete, the Applicant submitted insufficient evidence to support this contention.  Therefore, the NDRB must rely upon the presumption of regularity in the conduct of governmental affairs.  Relief denied on this issue.

Issue 2-3:  The Applicant contends that a continuing UOTH characterization is inequitable in light of his service and his contributions since separation.  The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis.  If such a review reveals an impropriety or inequity, relief is in order.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service.  An Honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for Naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate.  A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record.  An Under Other Than Honorable Conditions discharge is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service.  

In this case, the Board found that member’s service was honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record.  The Applicant contends that although he did not fully disclose his pre-service misconduct prior to entering military service, his three-and-half years of honest and faithful service should be considered in the determination of his overall characterization of service; and that his singular incident/framework of failing to disclose his pre-service history should not discount his entire military service.  In support of his contentions, the Applicant submitted a personal statement and scores of statements (both written, telephonic, and in person) from people who knew him while in service and since.  The Applicant referred to an exhaustive list of all the Naval Special Warfare training completed which culminated in the Applicant becoming a SEAL.  The Applicant commented upon evidence of his in-service performance, which included a successful deployment to South America.  Lastly, the Applicant offered ample evidence of his various post-service entrepreneurial and philanthropic endeavors currently up and running.  Most of these activities involve supporting veterans in some form or fashion.  

The Board also considered the serious pre-service misconduct the Applicant omitted from his enlistment documentation and the minor misconduct adjudicated at NJP while in service.  Regarding his pre-service misconduct, there is evidence the Applicant’s Command may have relied upon a somewhat inaccurate/partially overstated/duplicative version of the Applicant’s pre-service criminal record when he was initially processed for separation.  However, even based upon the more limited list of adjudicated misconduct the Applicant admitted to now, had the government known about these transgressions as both a minor and adult, it is very likely the Applicant would have been denied the various waivers required to enter a pre-9/11 peacetime military, and even more likely denied entrance into the Naval Special Warfare community and the enhanced background scrutiny that comes with those requisite level(s) of security clearance.  

In response to his failure to disclose his pre-service history, the Applicant contends these omissions are mitigated by his burning desire to serve in the military, an overzealous and misleading recruiter, and the recent death of his grandmother.  The Board accepted this rationale to a certain extent, but also considered the Applicant was 23 years old, and had already matriculated in and out of the Marine Corps just a few years prior.  Even accepting the Applicant was misled by his recruiter, the Applicant failed to truthfully and fully disclose his pre-service criminal history during the application process.  Further, even if the Applicant could show misrepresentations in the recruitment process, such misrepresentations would neither amount to a justification nor to a defense for the Applicant’s own misconduct. 

According to regulations, an enlistment, induction, or period of service is fraudulent when there has been deliberate material misrepresentation, including the omission or concealment of facts that, if known at the time, would have reasonably been expected to preclude, postpone, or otherwise affect the service member’s eligibility for enlistment or induction.  Federal law requires all persons applying for enlistment in the military to disclose all sealed, expunged, or juvenile records.  Therefore, the Applicant had an obligation to truthfully and fully answer all questions regarding his criminal history.  Based on the Applicant’s failure to truthfully and fully disclose information regarding his pre-service criminal history, his command determined that his enlistment was fraudulent.  

Upon review, the Board found that the documentation and statements provided did not refute the presumption that the Applicant deliberately misrepresented his criminal history during the enlistment process, including the omission or concealment of facts which, if known at the time would have reasonably been expected to preclude, postpone, or otherwise affect his eligibility for enlistment or induction.  Consequently, no other narrative reason other than fraudulent entry more clearly describes the circumstances surrounding the Applicant’s processing for administrative separation. 

However, the above being said concerning the underlying basis/reason for the Applicant’s separation, the Board agreed with the Applicant that credit should be given to the Applicant’s nearly four years of military service.  Specifically, the Board considered the Applicant’s overall in-service performance and conduct where he successfully completed the requirements to become a SEAL; serve as a Sailor; deploy in support of his Command; further considered the relatively singular nature of the Applicant’s pre-service non-disclosure; the prophylactic rationale behind the Fraudulent Entry Regulations and the subjective nature of the waiver process; and the Applicant’s absolute remorse.  In short, the Board found that his singular incident/framework of failing to disclose his pre-service history should not discount his entire military service.  Consequently, the Board determined that the Applicant’s service was honest and faithful but significant negative aspects of the member’s conduct outweighed the positive aspects of the member’s service record; and thus, it is appropriate to recharacterize the Applicant’s service as General (Under Honorable Conditions). 

Decision

After a thorough review of the available evidence, to include the Applicant’s issues, summary of service,  record entries, and discharge process, the Board found .  Therefore, the awarded characterization of service shall  GENERAL (UNDER HONORABLE CONDITIONS), the narrative reason for separation shall  FRAUDULENT ENTRY (DRUG ABUSE) with a corresponding separation code of HDT, and the reentry code shall  RE-4.  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of the discharge.  The Applicant is directed to the Addendum for additional information.

ADDENDUM:  Information for the Applicant

Complaint Procedures: If you believe 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/.  More information is available at http://www.secnav.navy.mil/mra/CORB/pages/ndrb/default.aspx.

Additional Reviews: After a document review has been conducted, former members are eligible for a personal appearance or telephonic hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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.  There are veterans organizations such as the American Legion and the Disabled American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490, or http://www.secnav.navy.mil/mra/bcnr/Pages/default.aspx for further review.

Service Benefits: The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB.  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 NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

Reenlistment/RE-code: The NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code.  Additionally, the NDRB 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, 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 BCNR can grant this type of narrative reason change.

Automatic Upgrades: There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Traumatic Stress Disorder and/or Traumatic Brain Injury: For all claims involving PTSD and/or TBI, the NDRB’s review implemented the guidance set forth in the SECDEF Memorandum of 3 September 2014 (Supplemental guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder).  In accordance with U.S. Code, Title X, Section 1553 (d)(1) & d(2), the NDRB included a member who is a physician, clinical psychologist, or psychiatrist and accorded the case sufficient priority to achieve an expedited resolution and a final decision.

Post-Service Conduct: The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  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.  Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; 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 companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle.   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 accomplishments help demonstrate  in-service misconduct was an aberration and not indicative of the member’s overall character.

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 NDRB 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.

Military Sexual Trauma: The Department of Veterans Affairs (VA) uses the term "military sexual trauma" (MST) to refer to experiences of sexual assault or repeated, threatening sexual harassment experienced while on federal active duty, active duty for training, or inactive duty training.  To get confidential one-on-one help please contact the MST Coordinator at your nearest VA Medical Center or Call Safe Helpline at 1-877-995-5247 or visit www.mentalhealth.va.gov/msthome.asp.

Reporting Military Sexual Trauma: To report a military sexual trauma, you can make an anonymous report to the Naval Criminal Investigative Service (NCIS) by Text or Online.  The NCIS Tip Line provides service members, veterans and civilians a safe, discreet and ANONYMOUS option to report criminal and force protection threats within the USN and USMC without concerns of retaliation.  To report a crime by Text: Text  274637 (CRIMES); Type “NCIS” at the top of the message; and include as much detail as possible to ensure your tip can effectively be investigated.  To send your ANONYMOUS Tip via the online, go to https://www.tipsubmit.com/webtipsNAV.aspx?AgencyID=840.

Suicide Prevention: Veterans in emotional crisis or their loved ones can call the free and confidential Veterans Crisis Line at 1-800-273-8255 (then press 1); or chat online at http://www.veteranscrisisline.net, or send a text message to 838255 to connect with a caring, qualified Veteran Affairs Responder who can deal with any immediate crisis.