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NAVY | BCNR | CY2006 | 06869-06
Original file (06869-06.rtf) Auto-classification: Approved
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-51 00
JRE
         Docket No. 06869-06
23 October 2006

From:    Chairman, Board for Correction of Naval Records
To:      Secretary of the Navy
Subj:    REVIEW OF NAVAL RECORD

Ref:     (a) 10 U.S.C. 1552

End:     (1) DD Form 149
(2)      Subject’s naval record

1. Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner, filed enclosure (1) with this Board requesting, in effect, that the applicable naval record be corrected to show that his enlistment was not fraudulent, that his disqualifying condition did not exist prior to his enlistment, and that he was assigned a more favorable reentry code than RE-3.

2. The Board, consisting of Ms.and Messrs. and reviewed Petitioner’s a1Iegatio~is of error and injustice on
13 October 2006, and pursuant to its regulations, determined that the partial corrective action indicated below should be taken on the available evidence of record. Documentary material considered by the Board consisted of the. enclosures, naval records, and applicable statutes, regulations and policies.

3. The Board, having reviewed all the facts of record pertaining to Petitioner’s allegations of error and injustice, finds as follows:

a.       Before applying to this Board, Petitioner exhausted all
administrative remedies available under existing law and regulations within the Department of the Navy.

b.       Petitioner underwent a pre-enlistment physical examination on 7 January 2005, and was found physically qualified for enlistment. He denied having a history of back pack pain in the report of medical history he completed on that date. He entered Qfl active duty on 1 August 2005. On 5 August 2005, he reported that he had experienced back pain associated with running. On 9 August 2005, he stated that he had experienced back pain for one month during January 2005. As
the back pain was considered disqualifying for military service, he was processed for discharge by reason of erroneous and fraudulent entry. In a letter dated 29 August 2005, Petitioner’s commanding officer notified the Chief of Naval Personnel that since Petitioner had failed to disclose his pre-service history of back pain, he would be discharged and assigned a reentry code of RE-4. Petitioner was discharged on 2 September 2005, by reason of fraudulent entry into the military service, and assigned a reentry code of RE-4.

 c.       Petitioner contends that his back pain did not begin until after he had been examined and found physically qualified for enlistment on 7 January 2005. He maintains that his enlistment was not fraudulent.


CONCLUSION:

Upon review and consideration of all the evidence of record, the Board accepts Petitioner’s contention that he did not conceal a history of back pain when he underwent his pre-enlistment physical examination. Accordingly, it finds that his enlistment was erroneous, rather than fraudulent, which warrants the following corrective action.

RECOMMENDATION:

 a.       That Petitioner’s naval record be corrected to show that he was discharged by reason of erroneous enlistment on 2 September 2005, vice fraudulent entry, and that he was assigned a reentry code of RE-3E, vice RE-4.
b.       That so much of his request for correction of his military record as exceeds the foregoing be denied.
c.       That a copy of this Report of Proceedings be filed in Petitioner’s naval record.
4. It is certified that a quorum was present at the Board’s review and deliberations, and that the foregoing is a true and complete record of the Board’s proceedings in the above entitled matter.



ROBERT D. ZSALMAN                                             JAMES E . XNICIOS
 Recorder                                                               Acting recorder

5. Pursuant to the delegation of authority set out in Section 6(e) of the revised Procedures of the Board for Correction of Naval Records (32 Code of Federal Regulations, Section 723.6(e)) and having assured
 compliance with its provisions, it is hereby announced that the foregoing corrective action, taken under the authority of reference (a), has been approved by the Board on behalf of the Secretary of the Navy.

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