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NAVY | DRB | 2005_Navy | ND0500672
Original file (ND0500672.rtf) Auto-classification: Denied


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

ex-AR, USN
Docket No. ND05-00672

Applicant’s Request
The application for discharge review, received 20050228, requested that the characterization of service on the discharge be changed to honorable or general (under honorable conditions) and that the RE code be changed. The Applicant requests a personal appearance hearing before the Board in the Washington National Capital Region. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050727. 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:

“I would like to change my RE-4 discharge to a discharge where I may reenlist in the service.

I had a bad recruiter who used phony documents to get me in the Navy, because I had a GED & with my score on the ASVAB it wasn’t enough to get in. So he got one on the Internet. When moment of truth came about I thought this would bite me later so I told them. I called my recruiter & told him he yelled and freaked out. He told me to shut up from thereon and tell them I’m crazy, And I would just go home and Not JAIL, so I did & went to seps All I want to do is serve my country in a honest manor. I have wanted this since I was 11 yrs old. Please help me
Thank you
R_ C_ (Applicant)”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Travel Certificate, Separation without orders, date October 10, 2001

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20010831 - 20010924               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20010925             Date of Discharge: 20011012

 Length of Service (years, months, days):

         Active: 00 00 18
         Inactive: None

 Age at Entry: 24                          Years Contracted: 4

 Education Level: 12                        AFQT: 47

 Highest Rate: AR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NA*                           Behavior: NA              OTA: NA

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: None

*Not 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 :

010831:  Pre-service waiver for minor traffic violations granted.

010925:  Enlistment eligibility determination approved for two dependents.

 010926:  Administrative entry: Recruit’s disclosure (page 13 info only): 12 Chart “A”, 3 Chart “D” (Dismissed), marijuana and hallucinogen use (see attached for details states that he did not earn a high school diploma. Recruits disclosure (medical/missing docs), attempted suicide/psych counseling (see attached for details). The Applicant indicated that he did tell his recruiter at Meps. Referred to: Legal, RMU/Medical. Recommended action: Separation. Remarks: Pre-service drug abuse/non HSDG with AFQT less than 50, not enlistment eligible, no waivers authorized.
010926:  Recruit Mental Health evaluation: Assessment confirms the following psychiatric diagnoses:
         AXIS I: Bipolar II disorder, EPTE.
                  Panic disorder without agoraphobia, EPTE.
 AXIS II: No diagnosis.
Plan and Recommendation: Entry level separation due to disqualifying psychiatric condition affecting servicemember ’ s potential for performance of expected duties and responsibilities while on active duty.
011004:  Applicant notified of intended recommendation for discharge by reason of defective enlistment and induction due to fraudulent enlistment as evidenced by Moment of Truth and defective enlistment and induction due to erroneous enlistment as evidenced by a bipolar disorder and a panic disorder. The least favorable characterization of service possible is General (Under Honorable Conditions).
011004:  Applicant advised of rights and having elected not to consult with qualified counsel, elected to waive all rights.

011009:  Commanding Officer directed discharge with an uncharacterized service by reason of defective enlistment and induction due to fraudulent entry. Commanding Officer’s comments (verbatim): “ As evidenced by signed notification form, RQAT disclosure statement and Recruit Mental Health administrative separation recommendation, a fraudulent enlistment has occurred. Member disclosed pre-service civil convictions/involvement at Moment of Truth. Additionally, as evidenced by the signed notification form, RQAT disclosure statement and Recruit Mental Health administrative separation recommendation, an erroneous enlistment has occurred. I authorize separation from the naval service with an Entry Level Separation. Reentry Code: Not Eligible (RE-4). ”

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20011012 with an uncharacterized service by reason of defective enlistment and induction due to fraudulent entry (A). 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 (B and C). The Board presumed regularity in the conduct of governmental affairs (D).

 The Applicant contends that his recruiter was responsible for his fraudulent entry into the Naval service. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of establishing his issues through the presentation of substantial and credible evidence to support his issue. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that the recruiter compelled him to commit a fraudulent enlistment. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. Relief denied.

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 characterization, an uncharacterized discharge is generally considered the most appropriate characterization of a member’s service. 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 to honorable. The Applicant should be aware that, with respect to nonservice-related administrative matters, i.e., VA benefits, educational pursuits, and especially civilian employment, an uncharacterized separation is considered the equivalent of an honorable or general (under honorable conditions) discharge.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code. 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. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

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. 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 32, effective 26 Apr 01 until 21 Aug 02, 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 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

 C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .
D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

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 “ http://Boards.law.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:

                  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

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