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NAVY | DRB | 2004_Navy | ND04-00473
Original file (ND04-00473.rtf) Auto-classification: Denied


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


ex-AR, USN
Docket No. ND04-00473

Applicant’s Request
The application for discharge review, received 20040127, requested that the characterization of service on the discharge be changed to honorable. The Applicant requested a documentary record review. The Applicant listed the Disabled American Veterans as the representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20040922. 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 of the discharge shall not change. The discharge shall remain: UNCHARACTERIZED/FRAUDULENT ENTRY INTO MILITARY SERVICE, authority: NAVMILPERSMAN, Article 1910-134 (formerly 3630100).






PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues, as stated

 Applicant’s issues, as stated on the application:
1. “I believe my uncharacterized discharge to have been inequitable because it was based on my childhood problems and incidents. In was in Foster care from age of 3 to age 18,. I would also like to point out that during those 14 years of my life, I was never given a chance to provwe I was cabable of normal behavior off medication, Now in 2003 I have been off medication for three years and have been gainfully employed without problems on a full time basis, have entered a stable relationship with a girl, and have yet to have any legal problems with the law. I also advised my recruiter of my childhood problems and was told not to say anything about it. After getting to recruit training and receiving lecture regardingUCMJ, I advised my platoon leader.
My ultimate goal is to go back into the reserves or guard and bpooibly make a career of the military.
The recruiter in San Marcos TX, who advised me not to mention my childhood problems was PO J_.”

 Additional issues submitted by Applicant’s representative (Disabled American Veterans):
2. “Dear Chairperson:

 After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current Un-Characterized discharge to that of Honorable.

The FSM served on active service from July 15, 2003 to August 11, 2003 at which time he was discharged due to Fraudulent Entry into Military Service (Other).

The FSM requests equitable relief in the form of a discharge upgrade that the current discharge does not fairly represent the type of person he was in service or is now. That the incident in service was created because he followed the recruiter’s instructions, a recruiter whom represented the U.S. Navy.

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the Applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174C.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the Applicant.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Job reference from Wal*Mart Supercenter 901
 Psychiatric progress notes, dated November 11, 1998 and December 8, 1998
 Psychiatric progress notes, dated May 21, 1999, June 8, 1999 and July 16, 1999
Letter from The Burke Foundation, dated July 21, 2003
 Letter from The Burke Foundation, dated July 22, 2003 (2 pages)
Letter from The Burke Foundation, dated December 12, 2003 (2 pages)
Letter from Disabled American Veterans, dated January 14, 2004
Appointment of Veterans Service Organization as claimant’s representative, dated January 1, 2004

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     021204 - 030714  COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 030715               Date of Discharge: 030811

 Length of Service (years, months, days):
         Active: 00 00 27
          Inactive: None

 Age at Entry: 19                          Years Contracted: 4
Education Level: 12                        AFQT: 35

 Highest Rate: AR
Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMA*                 Behavior: NMA             OTA: NMA
Military Decorations: None

 Unit/Campaign/Service Awards: NDSM
Days of Unauthorized Absence: None

 *No Marks Available.
Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNCHARACTERIZED/FRAUDULENT ENTRY INTO MILITARY SERVICE, authority: NAVMILPERSMAN, Article 1910-134 (formerly 3630100).
Chronological Listing of Significant Service Events :

030731:  Medical evaluation: Applicant revealed a previously undisclosed history of psychiatric treatment, including the use of psychotropic medication. Results of evaluation: Axis I: Dysthymic Disorder, Early Onset, EPTS, Primary Diagnosis. Conduct Disorder, Childhood Onset Type, EPTS. Recommendation: An entry level administrative separation is recommended as a result of the disqualifying psychiatric condition.
030805:  Applicant notified of intended recommendation for discharge with an uncharacterized service by reason of defective enlistment and induction due to erroneous enlistment as evidenced by dysthymic disorder and conduct disorder and by reason of defective enlistment and induction due to fraudulent enlistment as evidenced by failure to disclose pre-service psychiatric treatment.
030805:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
030806:  Commanding Officer directed 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 20030811 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 proper and equitable (C and D).
Issue 1: 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. There is no evidence of impropriety or inequity in the Applicant’s discharge. The Applicant’s failure to disclose his pre-existing psychiatric treatment and use of psychotropic drugs is clearly documented. The Applicant contends that his recruiter instructed him to not disclose his treatment history. Despite his claims to the contrary, there exists no credible evidence in the record, nor does the Applicant provide credible evidence in support of his contention. As a result, the Board presumes regularity in the conduct of governmental affairs and relief is denied.

By regulation, members discharged within the first 180 days of enlistment are given characterization of service "Uncharacterized" or entry-level separation unless there were unusual circumstances regarding performance or conduct, which would merit an "honorable" characterization. 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 to "honorable." Relief denied.

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. The NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that his discharge was appropriate. Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an 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 other evidence related to his discharge at that time. 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), re-issued October 2002, effective 22 Aug 02 until Present, Article 1910-134 (previously 3630100), Separation 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 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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