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NAVY | DRB | 2004_Navy | ND04-00460
Original file (ND04-00460.rtf) Auto-classification: Denied


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

ex-AN, USN
Docket No. ND04-00460

Applicant’s Request
The application for discharge review was received on 20040128. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record review. The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20041001. 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 and narrative reason of the discharge shall not change. The discharge shall remain: UNCHARACTERIZED (ENTRY LEVEL SEPARATION)/ERRONEOUS ENTRY (OTHER), authority: NAVMILPERSMAN, Article 1910-130 (formerly Article 3620280).







PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1. “I feel the characterization as an erroneous enlister is unjust. I do not recall the interview that gave the details used to determine my discharge. The description of events, before entry, that possibly led to a temporary cognitive disorder and ultimately to discharge, was inaccurate. The discharge code is hindering me from pursuing military career.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Neuroimaging report, dated February 12, 2001
Neuroimaging report, dated February 22, 2001
Job reference, dated September 12, 2003
Personal statement from the Applicant, undated

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     001122 - 010107  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 010108               Date of Discharge: 010131

 Length of Service (years, months, days):

         Active: 00 00 24
         Inactive: None

 Age at Entry: 21                          Years Contracted: 4

 Education Level: 13                        AFQT: Unknown

 Highest Rate: AN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMA*                 Behavior: NMA             OTA: NMA

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: None

*No marks assigned

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

UNCHARACTERIZED (ENTRY LEVEL SEPARATION)/ERRONEOUS ENTRY (OTHER), authority: NAVMILPERSMAN, Article 1910-130 (formerly Article 3620280).

 Chronological Listing of Significant Service Events :
001122:  Report of Medical Examination upon entry: Applicant failed to disclose cognitive disorder. The condition was disqualifying for further military service. Doctor recommended administrative separation.

010123:  Medical evaluation diagnosis: Cognitive disorder, not otherwise specified, post-concussive, existed prior to entry.

010125:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service with a general (under honorable conditions) by reason of defective enlistment and induction due to erroneous enlistment as evidenced by cognitive disorder.
010125:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

010126:  Commanding Officer directed discharge with uncharacterized service by reason of defective enlistment and induction due to erroneous enlistment.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010131 with an uncharacterized service for defective enlistment and induction due to erroneous enlistment (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 proper and equitable (C and D).

Issue 1. The documentation and statements provided by the Applicant do not refute the evidence of record in which the Applicant was diagnosed to possess a cognitive disorder that disqualified him for further military service. A member may be separated on the basis of erroneous enlistment when the enlistment would not have occurred if the relevant facts had been known by the Navy Department and the erroneous entry was not the result of fraudulent conduct on the part of the Applicant. No other narrative reason more clearly describes the circumstances surrounding the Applicant’s processing for administrative separation. Relief to the narrative reason for separation is denied.

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces. Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment. A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.

By regulation, members discharged within the first 180 days of enlistment are given characterization of service as “uncharacterized” unless there were unusual circumstances regarding performance or conduct which would merit an “honorable” characterization. The Applicant’s service record did not contain any unusual circumstances during his less than one month in the military to warrant a change of discharge. With respect to non-service related administrative matters, an uncharacterized separation is considered the equivalent of an honorable or general (under honorable conditions) characterization.

The Applicant’s discharge characterization accurately reflects his service to his country. The discharge was proper and equitable. Normally, to permit relief, an inequity or impropriety must have existed during the period of enlistment in question. No such inequity or impropriety is evident during the Applicant’s enlistment. Additionally, 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 the service. Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received at the NDRB within 15 years from the date of his 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 18, effective 12 Dec 97 until 12 Jun 01, Article 1910-130 (formerly 3620280), Separation by Reason of Defective Enlistments and Inductions - Erroneous Enlistment.

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 view DoD Directive 1332.28 and other Decisional Documents by going online at " afls14.jag.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:

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


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