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Docket No. ND05-00623

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

FOR OFFICIAL USE ONLY

 ex-SR, USN
Docket No. ND05-00623

Applicant’s Request

The application for discharge review was received on 20050223.  The Applicant requests  the characterization of service received at the time of discharge be changed to honorable.  The Applicant requested a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050727.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service or the reason processed for discharge was discovered by the NDRB. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain as corrected: UNCHARACTERIZED (ENTRY LEVEL SEPARATION)/ERRONEOUS ENTRY (OTHER), authority: NAVMILPERSMAN, Article 3620280.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“1.  Improper enlistment practices of recruiting office

 2.  Incorrect explanation given on DD 214

(See attached memo)”

Issues as submitted on Memo:

“Members of the Review Board:

Overview:

The purpose of this petition to the Board for Correction of Naval Records is to ask for consideration of an upgrade to my discharge from the U.  S.  Navy that occurred on June 11, 1997.  I am providing you with a detailed background of the issues in my case in this memo, I have also enclosed copies of all the documents that I have been provided that are pertinent to this case for your reference and consideration as you review the merits of my petition.

Background:

I attended and graduated from the Clear Creek Independent School District, Friendswood, Texas, in May 1997.  I had been interested in military service for several years.  I sought out information from military recruiters in my junior year of high school and entered an early enlistment program in June 1996.  All of the processing went smoothly and I completed all the written tests and physical exams successfully.  I took special care to make sure I had a perfect legal record and I was especially careful not to engage in the use of illegal drugs.  I was very much looking forward to my graduation from high school and subsequent entry into the Navy.

Note: Copies of all papers filled out for enlistment are enclosed.

Upon graduation from high school in May 1997, I completed my processing into the US. Navy and within days left for basic training in Great Lakes, Illinois.  Upon arrival at the recruit-training center, further processing took place and on June 6, 1997, I was taken through a process called a “Moment of Truth”.

In the Moment of Truth, many questions were asked, some of which had not been asked on any form that I filled out nor asked by my recruiter.  The interviewer told me that because of potential battlefield conditions, I needed to provide him any significant 
allergic reactions or prescription medications that I had taken in the past.  
I told him that I had a strong allergic reaction to bee and wasp stings and that during my junior year in high school, I had taken Ritalin to help me concentrate in studying and testing.  As soon as I said that, the whole world changed with regard to my status.  I was removed from my company and put in a separate group for further evaluation and processing.

Note: At this point, it is important for me to digress into the details of my use of Ritalin.

Digression:

Throughout my years in public school, I had always had some degree of difficulty in concentrating when mental focus was most critical, especially taking tests in school, It was difficult to filter out distractions.  During my early school years, the schoolwork was not as challenging and I managed to cope with that condition.  In high school, the schoolwork became much more challenging and at the end of my sophomore year, I asked my doctor to explore this more frilly.  He referred me to a psychiatrist and after extensive testing, I was diagnosed as having attention deficit disorder (ADD), and I was prescribed Ritalin, I used this medication during my junior year in high school and it greatly improved my ability to focus and concentrate.  My grades were markedly improved and I finished that year with a 3.50 GPA.

Note: I have enclosed copies of all the documents I have regarding the diagnosis and prescription of Ritalin.

In my senior year, the courses I had left to take were not as difficult and I decided to try not using Ritalin.  I did not like some of the side effects of this drug, which included a loss of appetite and maintaining more of a somber mood.  I was successful in achieving good grades in my senior year and completed that year with a 3.33 GPA.  I believe there were a couple of factors that contributed to my success without Ritalin.  First, I learned how to cope with ADD and developed techniques for filtering out distractions.  Second, I gained confidence in my ability to be successful with schoolwork.

Note: It is important for me to emphasize that because Ritalin was a prescribed medication and the focus of all the written and verbal questions had been on illegal drugs, the thought of it being a problem for entering the U.S. Navy never crossed my mind during my processing activities with the recruitment office.  In later years, Ritalin became somewhat controversial, but that was not the case in 1997.  I also did not consider ADD to be a problem for future military testing because I had been successful in my senior year without using he medication.

Return to Background:

In subsequent processing at the training center, I was evaluated by a staff psychologist.  His diagnosis was “Axis I: Attention Deficit/Hyperactivity Disorder - Combined Type’ and “Axis II: No diagnosis on Axis II”.  He recommended entry-level separation because of that diagnosis.  From that time until my return home, all activities centered on processing me out of the U.  S.  Navy.  I worked in the Legal Department at the RTC until my departure.

Note: I have enclosed all documents that I was given from Great Lakes RTC

During this time of being processed out, my state of mind was one of confusion and dismay.  I had waited for two years to enter the military, completed an early enlistment, regularly visited the recruiting office, had passed all the tests, maintained a perfect record, and had arrived at basic training.  Then, in one brief moment, the world totally turned around, and I was very uncertain of my future direction.  I was placed in a barracks of drug addicts and men with criminal backgrounds for a week.  All of this because I had a medical condition that no verbal or written questions had ever asked me about and had taken medication for one school year that was legally prescribed.

Post Military Activities:

Upon return from Great Lakes, Illinois, I began to work and reorient myself for the future, I left unpleasant memories of my military experience behind and enrolled in junior college to begin taking my core classes.  Upon completion of those courses, I selected Criminal Justice as my major and transferred to the University of Houston.  I am now in the process of completing my senior year and will graduate in June 2005.  My current GPA is 3.16 and I have completed this college curriculum without the aid of Ritalin.  Throughout my college years, I have worked part time to help pay expenses.  In addition, I have maintained a criminal free record and have still never used illegal drugs.  In the attached documents, I have listed the names, addresses, and phone numbers of several individuals you can contact with regard to my character and activities since my separation from the U. S. Navy.  I would welcome your inquiries.

Reason for This Petition:

Upon graduation, I will be seeking a career in criminal justice.  Many of those jobs are with government agencies.  In any case, many applications for employment ask about military service.  On my DD-214, my type of discharge is listed as “Discharged”, my character of service is listed as “Uncharacterized (Entry Level Separation)”, the narrative reason is listed as “Fraudulent Entry into Military Service (Other), and my reentry code is listed as “RE-4”.  This wording and coding will potentially cause me great difficulty in securing employment using my upcoming degree in criminal justice.

I believe that with the conditions of my case, classifying my discharge as anything other than honorable would be an injustice because there was nothing “Fraudulent” about my entry.  Upon my return and hearing the circumstances of my case, my recruiter, K_T_, was very apologetic and said that they had not covered this potential problem with me at all.  Recruiters that I have talked to over the years consider this discharge characterization and reenlistment code to be inappropriate in my case.  They indicated it was the recruiting office that made a mistake and that it was apparent to them that my discharge should have been administered under honorable conditions.  It wasn’t until I began preparing my resume for employment after graduation from college that I realized the significance of my discharge status.  Up to this point, I thought the burden of error had been on the military.  A recruiter I talked to recently told me that the wording on my DD-214 and the reenlistment code were putting me in a very unfavorable position and that I should appeal for consideration of an upgrade to “Honorable”.

In looking back over my military file, in the letter of Authorization for Administrative Separation, the Commanding Officer gave the reason for processing as “Defective enlistment and induction into the naval service due to erroneous enlistment as evidenced by Moment of Truth”.  The Commanding Officer stated that “an erroneous enlistment has occurred.  Member was diagnosed with an attention-deficit/hyperactivity disorder,”

Note: The information provided in that letter is not in concert with the wording of my DD-214.  “Erroneous and “defective” have a very different meaning that “fraudulent”.

Summary:

Later this year, I will be entering the job market with a degree in criminal justice.  I am asking this review board to consider the circumstances of my case and find that a correction to my military record is appropriate.  If you do not find in my favor, I have a concern that what developed as a breakdown in communication and proper processing will have a negative impact on me for many years to come.  I should also point out that I have not sought, nor will I seek, any veteran’s benefits.  I only served a few days in the military and I don’t think that warrants entitlement to benefits as a veteran.  I would also like to say that I do not hold any animosity toward the U.S.  Navy for the situation that occurred and I continue to have every respect for all branches of service that protect our country.  It is an understatement to say that any help you can give me to correct and upgrade my military record will be most sincerely appreciated.

Respectively:

D_ A.  O_ [signature]
(social security number deleted)
(address deleted)

(telephone number deleted)”

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Job Oriented Basic Skills (JOBS) Program article
Twenty-three pages from Applicant’s enlistment paperwork
Medical paperwork
Seven pages from Applicant’s discharge paperwork
Applicant’s DD Form 214
List of personal references

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Inactive: USNR (DEP)	960627 - 970503	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  970504		Date of Discharge:  970611

Length of Service (years, months, days):

	Active:    00  01  08
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  71

Highest Rate:  SR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA*		Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

* No marks awarded

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNCHARACTERIZED (ENTRY LEVEL SEPARATION)/ERRONEOUS ENTRY (OTHER), authority: NAVMILPERSMAN, Article 3620280.

Chronological Listing of Significant Service Events:

970605:	Report of Recruit Evaluation Unit:  Diagnosis: Attention-Deficit/Hyperactivity Disorder, Combined Type, EPTE.

970606:	Moment of Truth Evaluation and Recommendations: Psychological assessment, interview data, and history support the diagnoses of: AXIS I: Attention-Deficit/Hyperactivity Disorder, Combined Type, EPTE.  AXIS II: No Diagnosis on AXIS II.  Recommend entry level separation.

970606:	Applicant notified of intended recommendation for discharge by reason of defective enlistment and induction due to erroneous enlistment as evidenced by Moment of Truth interview in which the Applicant admitted to a previous Psychological assessment that diagnosed him with Attention-Deficit/Hyperactivity Disorder and a treatment plan that prescribed Ritalin. 

970606:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

97060X	Commanding Officer directed discharge with an uncharacterized service by reason of defective enlistment due to erroneous enlistment.  Commanding Officer’s comments: “As evidenced by Recruit Quality Assurance Team (RQAT) Disclosure Record and medical consultation, an erroneous enlistment has occurred.  Member was diagnosed with an attention-deficit/hyperactivity disorder.  I authorize separation from the naval service with an Entry Level Separation.”

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19970611 with an uncharacterized service by reason of Fraudulent Enlistment (A).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that erroneous enlistment was the appropriate reason for discharge and that an administrative error was the cause of the DD Form 214 listing the narrative reason as fraudulent enlistment. 
The Board found that the characterization of service assigned was proper and equitable (B and C).

The Applicant contends that the enlistment practices of the recruiting office were improper. 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 issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that the recruiter misled him through the recruitment process.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.

The Applicant states that an incorrect characterization of service was listed on his DD Form 214. By regulation, members notified of intended recommendation for discharge within the first 180 days of enlistment are eligible for an uncharacterized or entry-level separation characterization of service.  Unless there were unusual circumstances regarding a servicemember’s performance or conduct that would merit an honorable characterization, an uncharacterized discharge is generally considered the most appropriate characterization of a member’s service.  The Applicant's service record did not contain any unusual circumstances during his 1 month 8 days in the military to warrant a change of discharge to honorable. The Applicant was issued an Entry Level Separation based on a diagnosis by competent medical authority, and the Applicant’s own admission of a prior Psychological condition. The board found the discharge to be proper and equitable.

The Applicant contends that the narrative reason for his separation was inaccurate and that there was no fraud involved in his enlistment. After a thorough review of the Applicant’s service and medical records the Board found:

•	An administrative error was the cause of the DD Form 214 listing the narrative reason as fraudulent enlistment
•	The Commanding Officer comments recommended an uncharacterized service by reason of defective enlistment due to erroneous enlistment. (1997060X)

The Board concluded that the appropriate narrative reason for Separation is ERRONEOUS ENLISTMENT. Relief on this basis is provided.
The applicant contends that the reentry code (RE-4) will potentially cause great difficulty for him in securing employment using his new degree in criminal justice. Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code.  Reenlistment policy of the naval service is promulgated by the Commander, Navy Recruiting Command, 5722 Integrity Drive, Bldg 784, Millington, TN.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. 

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 03 Oct 96 until 11 Dec 97, Article 3620280, SEPARATION OF ENLISTED PERSONNEL BY REASON OF DEFECTIVE ENLISTMENT AND INDUCTIONS – ERRONEOUS ENLISTMENT.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

PART IV - INFORMATION FOR THE APPLICANT

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 Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive.  You should read Enclosure (5) of the Directive 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 Directive 1332.28 and other Decisional Documents by going online at “http://Boards.law.af.mil”.

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

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.