, ex- MA2, 

Current Discharge and Applicant’s Request

Application Received: 20180921
Characterization of Service Received:   
Narrative Reason for Discharge:   FRAUDULENT ENTRY
Authority for Discharge:   MILPERSMAN 1910-134 [FRAUDULENT ENTRY INTO NAVAL SERVICE] 

Applicant’s Request:	Characterization change to:	
Narrative Reason change to: NONE REQUESTED
Reentry Code change to: NONE REQUESTED

Summary of Service

Prior Creditable Service:
Inactive:			Active:	HON 20000321 – 20011218   
				HON 20020618 – 20040616  

Period of Service Under Review:
Date of Enlistment:  20040617	Age at Enlistment:  29
Period of Enlistment:  2 Years   Extension
Date of Discharge:  20050518	Highest Rank/Rate:  MA2
Length of Service:  00  Year(s)  11 Month(s)  01 Day(s)
Education Level:  14	AFQT:  NFIR

Evaluation Marks (# of occasions):  Performance/Proficiency: 3.50 (2)   Behavior/Conduct: 3.50 (2)   OTA: 3.35 

Awards and Decorations (per DD 214):	Pistol  NDSM GWOTSM SSDR  

Periods of UA:  NONE
Periods of CONF:  NONE
Other Time Lost per DD214:  NONE

NJP:  NONE SCM:   SPCM:   CIVIL ARREST:   CC:   Retention Warning Counseling:  NONE

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

	  “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 
20000321 UNTIL 2001218 AND 20020618 UNTIL 20040618”
	  “FRAUDULENT ENTRY”

The NDRB will recommend to Commander, Navy Personnel Command or Commandant of the Marine Corps that the DD 214 be corrected as appropriate.

NDRB Documentary Review Conducted (date):	20061016
NDRB Documentary Review Docket Number:	ND06-00212
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:  , Mother of Applicant
	Witness E-2:			Witness C-2:

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560D), Change 11, effective 3 May 2005 until 15 May 2008, Article 1910-134, Separation by Reason of Defective Enlistments and Inductions - Fraudulent Entry Into the Naval Service.

B.  Secretary of the Navy Manual 5420.1 of 29 September 2020 (Standards for the execution of the Naval Discharge Review Board).

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

Applicant’s Issues

1.	The Applicant contends his discharge is unjust because the information that supported his separation was known by his recruiter and others during his first and second enlistments.
2.	The Applicant contends his in-service conduct and achievement warrants consideration for an upgrade.

Discussion

Date:  20201120		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 no retention warning counseling and no misconduct resulting in nonjudicial punishment or court-martial.

Issue 1:  The Applicant contends his discharge is unjust because the information that supported his separation was known by his recruiter and others during his first and second enlistments.

In support of this issue, the Applicant provided his account of his pre-service drug use and criminal offenses, and he indicated this information was known by recruiters.  The Applicant’s mother, who provided testimony to the NDRB hearing, supported the Applicant’s statement in which his initial recruiter was aware of the drug use and criminal offenses, and she recalled discussing this information with two other individuals following the Applicant’s entrance into service.  The Applicant further asserted that his recruiter told him to mark no to further questions concerning his drug use and criminal offenses as he was being inducted into service.  The Applicant also indicated that on his second enlistment, he didn’t lie or try to conceal this information when speaking with a military recruiter or individuals that questioned him later in service.  The Applicant did acknowledge his answers concerning his drug use and criminal offense on specific enlistment forms was wrong, but he believes that he was misled by his initial recruiter to mark these incorrectly and prior to his second enlistment, he was under the impression that he was cleared from further reporting this information.  

In review of the evidence of record, the NDRB found the Applicant has two previous periods of Honorable service.  Prior to the Applicant’s first enlistment, the NDRB noted four distinct enlistment documents in which the Applicant deliberately concealed information relating his drug use and/or criminal history.  The specific forms included the NAVCRUIT 1133/65, Recruit Screening Form (Drugs); SF86, Security Clearance Application; DD Form 1966, Record of Military Processing; and SF93, Report of Medical History.  During the Applicant’s first enlistment he was separated at the Convenience of the Government and was assigned an Honorable characterization of service.  Approximately six months after this separation, the Applicant reenlisted into military service.  During this second enlistment induction, the NDRB noted the Applicant signed a disclosure that total honesty is required on background investigation forms.  Additionally, on a Navy Illicit Behavior Screening Certificate, no disclosures were cited and no waivers were required for this enlistment.  On an SF86, Security Clearance Application, the Applicant again marked no to all questions pertaining to drug use, police involvement, criminal convictions, and financial delinquencies.  The NDRB found no evidence in the record to suggest or indicate the Applicant’s recruiter(s) improperly advised him during service induction(s) or that he was cleared from further reporting this pre-service information after his first enlistment.

During the Applicant’s second enlistment, he reenlisted for a period of six years.  His records indicate that he was an average to above average sailor who attained the rank of Petty Officer Second Class.  Following this reenlistment, the Applicant was transferred to Japan where he continued to perform the duties of a Master-at-Arms.  In December 2004, six months into this period of service that is under review, the Applicant was notified by the Department of the Navy Central Adjudication Facility of their intent to deny his security clearance based on a failure to disclose his criminal and financial history at the time of enlistment.  Given this information, the Applicant was recommended for separation under the basis of Fraudulent Enlistment.  The Applicant’s Commanding Officer stated in his Administrative Separation recommendation that the “he failed to fulfill his lawful obligation to disclose his criminal and financial history at the time of enlistment.  He made a conscious decision to conceal information when completing his SF 86 and in speaking with recruiters, which included convictions for drug offenses.  Had he been forthright and honest, he would not have been allowed to join the Navy.  His performance of duty since his enlistment is admirable, but it does not excuse behavior which clearly demonstrates an inherent lack of Navy Core Values.” 

The NDRB found that the documentation, statements, and testimony provided for review do not refute the presumption that the Applicant deliberately misrepresented his drug use, criminal convictions, and financial delinquencies 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.  While considering the considering the circumstances for the Applicant’s separation and this period of service, the NDRB determined his service was honest and faithful, but significant negative aspects of the his conduct or performance of duty outweighed the positive aspects of the his service record and the awarded characterization of service is warranted.  Relief denied.

Issue 2:  The Applicant contends his in-service conduct and achievement warrants consideration for an upgrade.

In support of this issue, the Applicant stated that he was a good sailor throughout his three enlistments.  He further indicated this statement was evidenced by his good evaluations and promotion to Petty Officer Second Class.

The Applicant was administratively separated; not separated upon expiration of enlistment or fulfillment of service obligation.  The characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation.  Other considerations shall be given to the member’s length of service, grade, aptitude, and physical and mental condition.  Based on the Applicant’s record of service and circumstances for his separation of service, the NDRB determined the assigned characterization of service is equitable and consistent with discharges given to others in similar circumstances.  Relief denied.

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 INTO MILITARY SERVICE with a corresponding separation code of JDA, and the reentry code shall  RE-4.  The Applicant is not eligible for further reviews by the NDRB.  The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149.  

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.