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NAVY | DRB | 1999_Navy | ND99-00128
Original file (ND99-00128.rtf) Auto-classification: Denied


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

ex-AZAA, USN
Docket No. ND99-00128

Applicant’s Request
The application for discharge review, received 981102, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions. The applicant requested 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 991004. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned the applicant’s character of service shall be changed to Honorable. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall state: HONORABLE /FRAUDULENT ENTRY INTO MILITARY SERVICE, authority: NAVMILPERSMAN, Article 3630100.




PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. Entry Level is less than 180 days. I had more than 180 days. LN1 T_ (DSN: xxx-xxxx Comm xxx-xxx-xxx-xxxx) sent by sep. package requesting Admin/Honorable. When it came back as entry level, she said it was an error & could re-send the package. But I didn't want to wait & she told me how to contact you.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
3 service record pages regarding separation processing

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     961009 - 961121  COG

 Period of Service Under Review :
Date of Enlistment: 961122               Date of Discharge: 970711

 Length of Service (years, months, days):

         Active: 00 07 20
         Inactive: None

 Age at Entry: 22                          Years Contracted: 4

 Education Level: 12                        AFQT: 78

 Highest Rate: AZAA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF                  Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: None

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

UNCHARACTERIZED/FRAUDULENT ENTRY INTO MILITARY SERVICE, authority: NAVMILPERSMAN, Article 3630100.

 Chronological Listing of Significant Service Events :

961006:  Report of Medical Examination upon entry: Applicant failed to disclose attempted suicide by overdose at age 18 and subsequent hospitalization.
970527:  Applicant made a voluntary statement to AMCS(AW/SW) V_ D_, admitting he was gay and confessed to his attempted suicide prior to enlisting in the Navy. This information was subsequent passed to the Legal office on 29 May 1997.

970529:  Medical evaluation (Mental Health Services): Pt is a 22 year old single white male active duty USN E-2 who has been seen at the Mental Health clinic upon referral from Dr. A_, USN physician regarding mental status examination. Well-groomed, dressed in civilian clothes. Full affect with calm, cooperative mood. Mildly tearful at times, able to quickly compose self. Reports verbally and via self-report measure, recent, vague suicidal ideation, without plan or intent. Denies any current suicidal/homicidal ideation, plan or intent. Of significance is self-reported past history of suicide attempt (1994?) IN WHICH PT STATES HE TOOK APPROXIMATELY 70 Xanax precipitating a 1 week psychiatric hospitalization. Two outpatient follow-up sessions and then pt terminated treatment. Reports decreased sleeping for approximate 2 months - currently estimates 3-4 hrs per night w/difficulty initiating and maintaining sleep. Increased fatigue. Decreased concentration (distracted by recent concerns). Decreased appetite times 4 days. Increased guilt. Reports crying spells 4-5 times a week. Subjective dysphoria and anhedonia. Increased irritability. Insight and judgment good. Pt denies any alcohol or drug use. Denies legal difficulties. Denies difficulties in job performance.
         Assessment: Axis I: 309.0 Adjustment Disorder with Depressed Mood
                  Axis II: V71.09 No Diagnosis on Axis II
                 Axis III: none noted
         Plan: (1) Pt to return to counsel tomorrow for scheduled follow-up with Ms. H_ of Mental Health Clinic. (2) Continuing supportive services offered and recommended to pt. (3) Discussed sleep maintenance and will monitor for improvement. (4) Discussed need for pt to take proactive role in proper diet and exercise program for depression and stress management. (5) Will discuss results of this evaluation with Dr. A_. (5) Pt agrees to plan.

970530:  Legal officer interviewed Applicant concerning his homosexual activities and the attempted suicide prior to enlistment. Applicant indicated that he did not mind be discharged from the navy and that he just "wants to live the life he feels he was born to".

970530:  Applicant signed "Suspect's Right Acknowledgement/Statement" acknowledging that he was suspected of having committed indecent acts offenses.
970605:  Applicant notified of intended recommendation for discharge with an honorable by reason of homosexual conduct and by reason of defective enlistment and induction due to fraudulent entry as evidenced by the applicant's statement that he is a homosexual or bisexual, or words to that effects and by applicant's failure to disclose his suicide attempt prior to joining the military.
970605:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

970609:  Commanding officer recommended discharge as warranted by service record, Honorable by reason of homosexual conduct and defective enlistment and induction due to fraudulent entry. Commanding officer’s comments (verbatim): "AZAA (Applicant) has only been on board for 1 month. During that time, he has demonstrated a willingness to do the job. However, his statement that he is a homosexual, that he has engaged in homosexual acts, and that he has the propensity to engage in homosexual acts in the future, requires processing for administrative separation from the naval service. Upon being advised of member's disclosure and state of mind, member was medically and psychologically evaluated for possible suicidal tendencies. Both evaluations revealed the member's failure to disclose a suicide attempt prior to enlistment, which would have been a disqualification for that enlistment. It is therefore recommended that AZAA (Applicant) be separated with a type discharge warranted by his service records, Honorable ."

 970618:  BUPERS directed the applicant's discharge with an uncharacterized service by reason of defective enlistment and induction due to fraudulent entry.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 970711 with an uncharacterized service by reason of defective enlistment and induction due to fraudulent entry (A). The Board presumed regularity in the conduct of governmental affairs (B). After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was improperly executed (C and D).

The NDRB found the applicant’s length of service at the time he was notified of intended discharge was greater than 180 days. The applicant was therefore not eligible for entry level separation. Accordingly, the applicant’s service should be characterized as type warranted by service record: Honorable. The narrative reason for separation shall remain: Fraudulent entry into the military service.

 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 3630100, SEPARATION OF ENLISTED PERSONNEL BY REASON OF DEFECTIVE ENLISTMENTS AND INDUCTIONS - FRAUDULENT ENTRY INTO THE NAVAL SERVICE.

B. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 obtain a copy of DoD Directive 1332.28 by writing to:
                  DA Military Review Boards Agency
                  Management Information and Support Directorate
                  Armed Forces Reading Room
                  Washington, D.C. 20310-1809

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:

                  Naval Council of Personnel Boards
                  Attn: Naval Discharge Review Board
                  Washington Navy Yard
                  720 Kennon Street SE Rm 309
                  Washington, D.C. 20374-5023     

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