Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: jennifer.miles
Company: NCPB

Docket No. ND09-01661

ex-SR, USN

Current Discharge and Applicant’s Request

Application Received: 20090527
Characterization of Service Received:  (per DD 214)  UNCHARACTERIZED
Narrative Reason for Discharge:  (per DD 214)  FRAUDULENT ENTRY INTO MILITARY SERVICE
Authority for Discharge: (per DD 214)  MILPERSMAN 1910-134

Applicant’s Request:	Characterization change to:	GENERAL (UNDER HONORABLE CONDITIONS)
	Narrative Reason change to:	NONE REQUESTED

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	20041021 - 20050720  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  20050721	Age at Enlistment:  18
Period of Enlistment:  4 Years  NO Extension
Date of Discharge:  20050906	Highest Rank/Rate:  SR
Length of Service:  00 Year(s)   01  Month(s)   16 Day(s)
Education Level:  12	AFQT:  39
Evaluation Marks:	Performance:  N/A	Behavior:  N/A	OTA:  N/A

Awards and Decorations (per DD 214):	NONE

Periods of UA/CONF:  NONE	NJP:  NONE	SCM:  NONE	SPCM:  NONE	CC:  NONE

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:

	Block 13, Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should read:  “NATIONAL DEFENSE SERVICE MEDAL”

The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate.

Types of Documents Submitted/reviewed

Related to Military Service:	
                                         DD 214:	☒	Service/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/To Representation:	☐	From/To Congress member:	☐
                    Other Documentation:	☐

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 3 May 2005 until 16 May 2008, 
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.

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

Applicant’s Issues

1.  Request separation and reentry code (RE code) changed.
2.  Correction of error or injustice in record.

Decision

Date:  2010030   DOCUMENTARY REVIEW                  Location:  Washington D.C.		Representation:  NONE

By a vote of 5-0 the Characterization shall remain UNCHARACTERIZED.
By a vote of 5-0 the Narrative Reason shall change to SECRETARIAL AUTHORITY.

Discussion
The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and/or the reason for discharge if such change is warranted.  In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Applicant’s record of service included a medical history report of 27 August 2004, wherein the Applicant checked “yes” to question #72, Taken medication, drugs or any substance to improve attention, behavior, or physical performance?  The medical history report also included the following comments: “I took Strattera for [Attention-Deficit /Hyperactivity Disorder] ADHD,”  “I have not taken anything since then.”  Furthermore, the evidence of record reflects on 18 August 2005, the Applicant was evaluated by a clinical psychologist at a Recruit Evaluation Unit who made the following observations: 1)  the Applicant revealed a prior psychiatric treatment and a psychiatric medical history, 2) the Applicant indicated that he had informed MEPS about his treatment, 3) it was determined that he was experiencing symptoms of ADHD and Hyperactivity-impulsivity for at least six months to a degree that was maladaptive and inconsistent with his development level, and 4) he was recommended for Entry Level Separation due to a disqualifying psychiatric condition affecting his potential for performance of duties and posed a risk if retained in the U.S. Navy.  Per the Commanding Officer’s (Recruit Training Command) letter of 30 August 2005, the Applicant was administratively discharged due to Erroneous Enlistment and Defective Enlistment and Inductions – Fraudulent Entry into the Naval Service based on the medical evaluation of 18 August 2005.  Per the Administrative Separation Processing Notice of 26 August 2005, the Applicant waived his right to consult with counsel, submit a written statement for consideration by the separation authority, and a General Court-Martial Convening Authority review. 

Issue 1 (Nondecisional) The Applicant is requesting a change in his reentry code.  The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces and is not authorized to change a RE code.  Only the BCNR can make changes to RE codes.  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.

Issue 2:(Equity) (Decisional)PARTIAL RELLIEF WARRANTED.  The Applicant has requested a change in his characterization of service, separation code and narrative reason contending he did not fraudulently enlist in the military.  The Applicant contends that he did reveal that he had taken medication for Attention Deficit Hyperactivity Disorder (ADHD) upon enlisting.  Based on a review of the records, medical documentation previously discussed, which included evidence presented by the Applicant, the NDRB determined there was sufficient evidence to prove the Applicant disclosed his psychiatric condition and treatment prior to enlisting and should not have been discharged due to fraudulent enlistment.  Therefore, the Board voted unanimously to change the narrative reason to secretarial authority.  Since the separation code is based on the narrative reason it shall also be changed to JFF.  The Board also determined that there was sufficient evidence to separate the Applicant based on a physical/mental condition.  Furthermore, 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 or Other Than Honorable characterization.  Since the Applicant was on active duty less than 2 months an Uncharacterized characterization of service is most appropriate.  The NDRB advises the Applicant that, with respect to nonservice related administrative matters, i.e. Department of Veterans Affairs benefits, civilian employment, etc., an Uncharacterized separation shall be considered the equivalent of an Honorable or General (Under Honorable Conditions) characterization.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service  Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that the discharge was improper.  Accordingly, the narrative reason for separation shall change to SECRETARIAL AUTHORITY and the separation code shall be changed to JFF.  However, the awarded the awarded characterization of service shall remain UNCHARACTERIZED.

The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his discharge.  The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct. 

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.”

Additional Reviews:  After a document review has been conducted, former members are eligible for a personal appearance 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), 2 Navy Annex, Washington, DC 20370-5100 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.

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-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

Key:	NFIR - Not Found In Record 	UA – Unauthorized absence	NJP – Nonjudicial punishment	SCM – Summary court-martial
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties
	CONF – Confinement	CC - Civilian conviction	CCU - Correctional Custody Unit	BW – Confinement on bread and water

Key:	NFIR - Not Found In Record 	UA – Unauthorized absence	NJP – Nonjudicial punishment	SCM – Summary court-martial	
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties 
	CONF – Confinement		B&W – Confinement on bread and water