Author: CAP
Last saved by: joyce.meeks
Company: NCPB

Docket No. ND06-00108

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

FOR OFFICIAL USE ONLY

 ex-SN, USN
Docket No. ND06-00108

Applicant’s Request

The application for discharge review was received on 20051012.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable and the Narrative Reason for Separation be changed to “Either Hon or Medical”.  The Applicant requests a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060802.  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 was discovered by the NDRB.  The Board’s vote was unanimous that the character of the discharge and reason for discharge shall not change.  The discharge shall remain General (Under Honorable Conditions) by reason of defective enlistment and induction due to fraudulent entry.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application and attached document/letter:

“The reason I request for a upgrade is the way in which my case was handled.  on 2005/04/05 I went to nmc Portsmouth because I was feeling as had back in 1999.  in 1999 I was told that I suffer depression.  I was on Zoloft 75mg.  when I joined the navy I took myself off the meds.  thinking that I would be fine.  on 2005/04/05 I felt the need to be seen.  I was seen by f_, j_ c. lt/mc/usnr.  at the time that I was released from nmc Portsmouth I was as per let f_ “pt is fit for full duty and may return to parent command” yet when I returned to my parent command hm3 d_.  usn took it apron himself to pass my medical record to cmc. t_ who in return passed it to lt. commander s_ who to my understanding had decided to give me a general discharge (under honorable conditions).  I feel as if this act was unjust.  as per the lt. f_ usnr as well as lt/mc/h_, lcdr r_ l. j_ i was sent back to my command fit for full duty.  ltcdr. s_’s decision was based on my medical file that should not have been past around as it was. As per the privacy act statement section 133, 1071-87, 3012, and 8012, title 10 united states code and executive order 9397 and the privacy act of 1974.  i have attaché a copy of routine uses of the medical file.  what was stated to the doctors should of stayed between my medical care providers.  as per lt. f_ I was not at risk to myself or any of my shipmates.  i was seen by more than one doctor, names are within.  Who felt that I was fit for full duty.  As well as not at risk.  it should have been left at that, but wasn’t.  hmc/sw h_ also stated that me being discharged should not be happening.  I was also told by cmdr. a_ of the Navy med center in Portsmouth that there are plenty of sailors who suffer depression and perform there duties.  I never got that chance.”

Applicant’s remarks:  (taken from the dd form 293): my medical record was and is for my doctor and care providers eyes only.  if my medical record was handled correctly it would not have been passed around.  if I was at risk to my self and my fellow shipmate then I could understand that my medical record would passed up the chain of command but it is stated very clearly that I was not at risk to myself and fellow shipmates and I was fit for full duty.  because of this I lost the chance to serve my country.  I lost my GI bill that I paid $1200’s for.  I lost all VA benefits I lost my sign on bonus.  My last two weeks of pay and travel pay as well.  All due to something that should not have taken place in the 1^st place, meaning my medical record being passed on.  All that I am left with after serving in the global war on terrorism with the navy is a 25pt hearing shift in my left ear.  Always having to ask what did you say what was sorry I can’t hear you.

Documentation

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

Medical Documents (23 pgs)
Applicant’s DD Form 214 (member-1 copy)
Applicant’s DD Form 214 (member-4copy)
Evaluation Report & Counseling Record period covering March 25, 2004 to July 15, 2004 (2 pgs) 

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20031120 - 20031202	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20031203		Date of Discharge:  20050511

Length of Service (years, months, days):

	Active:    01  05  09  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  none
	Confinement:		  none

Age at Entry:  23

Years Contracted:  4 

Education Level:  12				AFQT:  46

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.0 (1) 		Behavior:  3.0 (1) 		OTA:  3.17 [Extracted from documents provided by Applicant] 

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal, Global War on Terrorism Expeditionary Medal, Global War on Terrorism Service Medal.

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

GENERAL (UNDER HONORABLE CONDITIONS)/FRAUDULENT ENTRY INTO MILITARY SERVICE, authority:  MILPERSMAN, Article 1910-134 (formerly 3630100).

Chronological Listing of Significant Service Events: 

030930:	Report of Medical Examination upon entry (DD FORM 2807-1):  Applicant failed to disclose [existing medical conditions/problems, etc.].

031119:	Pre-service waiver for chart “c” offense (disorderly conduct).

040224:	Report of Medical History. Applicant denies any history of suicide or depression.

050405:	Medical evaluation by Naval Medical Center Portsmouth (Partial Evaluation).
	AXIS I: Dysthymic Disorder R/O MDD
	AXIS II: Deferred
	AXIS III: None
	AXIS IV: routine military stressors
	AXIS V: GAF 60
	Plan: 
	1. Pt is fit for full duty and may return to parent command.
	2.  To target the sxs of depressed mood, wrote prescription for Zoloft 50mg qhs.  Risks, benefits, alternatives to treatment (including no treatment) and side effects (including but not limited to GI upset, headache, sedation, dizziness, weight gain, serotonin syndrome, allergic and idiopathic reaction) of these medications have been d/w pt and he voiced understanding and willingness to take medication without coercion.  Prescription written by consulting psychiatry resident and can be picked up in the outpatient pharmacy.
	3.  A consult to NMCP Psychiatry has been placed.  The patient is instructed to call 953-5269 to schedule an appointment for medication management.
	4.  A consult to NMCP Psychology has been placed.  The patient is to call 953-7641.  The Psychology department has just acquired new providers and are able to schedule appointments within a week’s time.
	5.  The plan has been discussed with the patient who concurred with it.  Command contact was attempted by to no avail.
	6.  The patient agrees to seek immediate care if his condition declines.  The patient may contact a command officer, the NAVMEDCEN Psychiatry Clinic at 953-5269, the NAVMEDCEN Emergency Department, or call 911.
	7. Point of contact at Naval Medical Center Portsmouth is LT F_ at 953-5269.
	8.  Case seen by LT F_
	9.  Case discussed with LCDR C_, Staff Psychiatrist, who concurs.
	Recommendation: Not found in Record.
10. Past Psychiatric History: Applicant stated he was diagnosed with depression at age seven and had been treated with Zoloft for approximately 1.5 years prior to joining the Navy. Applicant stated the Zoloft was particularly effective but elected to discontinue it, as he was fearful undisclosed psychiatric history would have a negative impact on his Navy career.

050510:	Separation from Active Duty Screening: Applicant discharged for fraudulent enlistment H/O depression not disclosed.  Fit for separation not fit for reenlistment.
 
050511:	DD Form 214: Applicant discharged general (under honorable conditions) by reason of fraudulent entry into naval service per MILPERSMAN 1910-134. 

Service Record did not contain the Administrative Discharge package.
Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20050511 by reason of defective enlistment and induction due to fraudulent entry (A) with a service characterization of general (under honorable conditions).  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).  The Board presumed regularity in the conduct of governmental affairs (D).

For the edification of the Applicant, the Applicant implies that his discharge was improper and would not have occurred if his medical information had not been released to his command. The NDRB advises the Applicant that per the Manual of the Medical Department Article 16-10, medical records are the property of the U.S. Government. The privacy act statement the Applicant submitted clearly states that the record can be used by authorized individuals to determine suitability for service or assignments; it does not however serve as a vehicle for immunity from violations of Navy regulations.

The Applicant requests a change to his narrative reason to honorable or medical.
The NDRB advises the Applicant that COMNAVCRUITCOMINST 1130.8F states that members may be separated for effecting a fraudulent enlistment, induction, or period of service by falsely representing or deliberately concealing any qualifications or disqualifications prescribed by law, regulation, or order. According to the Applicant’s signed 20050923 DD FORM 293, the Applicant makes a voluntary statement that he had a prior history of depression, that he was taking 75mg of Zoloft, and prior to his enlistment he stopped taking the medications. The record of evidence also shows that on 20050405 during a medical evaluation the Applicant revealed an extensive history of depression dating as far back as age seven. The Applicant also disclosed two suicide attempts (Jan  and April 2001), the second incident resulted in the Applicant’s admission to Nassau University Medical Center, N.Y., for inpatient treatment / observation. The Applicant was prescribed Zoloft during that admission. Relating to his enlistment, the Applicant stated he was fearful his undisclosed psychiatric history would have a negative impact on his Navy career. The board also found that on the Applicant’s entry medical screening form (DD FORM 2807-1), the Applicant stated he did not have nor had any counseling, experienced depression, or excessive worry, attempted suicide, or been evaluated or treated for any mental condition. The NDRB found that the documentation and statements provided for review do not refute the presumption that the Applicant deliberately misrepresented his medical condition 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 the sailor’s eligibility for enlistment or induction.  In addition, the documentation available for review did not refute the presumption that depression still existed during the time of his enlistment.  No other narrative reason other than fraudulent entry more clearly describes the 
circumstances surrounding the Applicant’s processing for administrative separation.  Relief denied.

The Board presumed regularity in the conduct of governmental affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable. Specifically, the Applicant alleged that his chain of command mishandled his medical record, violated the privacy act, and applied an incorrect narrative reason (i.e. defective enlistment and induction due to fraudulent entry). The record however contains no evidence of any wrongdoing by the Applicant’s chain of command in the discharge process. The Board presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary. As such, this board presumed that the Applicant’s discharge was regular in all respects. Relief denied. 

The Applicant states that because of his discharge he lost his G.I. Bill, and all his VA 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.  Additionally, 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 on the propriety and equity of the discharge.  

The Applicant remains eligible for a personal appearance hearing, provided an 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.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 
3 May 2005 until Present, 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 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.

D.  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 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