ex-FR, USN

Current Discharge and Applicant’s Request

Application Received:  20080327
Characterization of Service Received:   (ENTRY LEVEL SEPARATION)
Narrative Reason for Discharge:  FRAUDULENT ENTRY INTO MILITARY SERVICE, (DRUG ABUSE)
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)	20070713 - 20071120  		Active:   

Period of Service Under Review:
Date of Enlistment: 20071121	Period of Enlistment:   Years   Extension	Date of Discharge:  20071221
Length of Service:    Yrs    Mths  01  Dys	Education Level:  	Age at Enlistment:  	AFQT:  59
Highest Rank/Rate:  FR	Evaluation Marks:  Performance: NFIR	Behavior: NFIR	OTA:  NFIR
Awards and Decorations (per DD 214):  NONE

Periods of UA/CONF:  

NJPs:	

SCMs:	

SPCMs:	

CC:	

Retention Warnings:  .

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:  

	- Letter from Senator J. I. of Oklahoma, U. S. Senate dated 19 March 2008.

Other Documentation (Describe) 

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

Applicant’s Issues

1.  Reenlistment code should be changed.
2.  Applicant was not paid.
3.  Applicant passed entry physical.
4.  Illegal drug use was not questioned.
5.  Illegal drug use was not detected.

Decision

Date:  20080821		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, (DRUG ABUSE).

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 NDRB has no jurisdiction to investigate or correct errors in pay.  The Applicant is directed to the Addendum, specifically the paragraph concerning Additional Reviews regarding this Issue.  The BCNR can review documentation provided by the Applicant and, if warranted, will contact the Defense Finance and Accounting Service to make any necessary corrections to back pay.

: ()  .  The Applicant contends he is entitled to an upgrade because he passed his entry physical.  The Board determined although the Applicant was found fit to enlist in June 2007, the evidence of the record indicates his physical condition had deteriorated to the point he was not able to begin training upon arrival at recruit training in November 2007.  The Board determined a change would be inappropriate.

: ()  .  The Applicant contends he is entitled to an upgrade because he was not questioned specifically about his abuse of Oxycontin.  The record of evidence clearly refutes this contention.  The Applicant denied having abused any narcotics, hallucinogens/psychedelic drugs upon enlisting in June 2007 at the age of eighteen years old.  This is documented on the Addendum to DD Form 1966/4, United States Navy Illicit Behavior Screening Certificate; specifically questions 1-3 where the Applicant initialed “No” to all three questions concerning the use of narcotics.  Upon initial medical treatment for opiate withdrawal in November 2007 the Applicant admitted daily use of Oxycontin, a narcotic drug, since the age of seventeen.  This statement indicates the Applicant fraudulently provided information to his recruiter and signed officially documents used during his enlistment process providing false information about his drug use and possible addiction to the narcotic Oxycontin.  The Board determined a change would be inappropriate.

: ()  .  The Applicant contends he is entitled to an upgrade because his illegal use of Oxycontin was not detected by urinalysis.  According to MILPERSMAN 1910-134, a fraudulent enlistment discharge is directed in cases of deliberate material misrepresentation, omission, or concealment of drug abuse.  As described above, the Applicant deliberately misrepresented his past abuse of Oxycontin in statements to his recruiter.  The Board determined a change would be inappropriate.

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 

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, 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 II, Para 211, Regularity of Government Affairs, Part V, Para 502, Propriety and Para 503, Equity.

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