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NAVY | DRB | 2005_Navy | ND0500748
Original file (ND0500748.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-OCSN, USN
Docket No. ND05-00748

Applicant’s Request
The application for discharge review was received on 20050324. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. The Applicant requests 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 20051013. 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 and reason for discharge shall not change. The discharge shall remain General (Under Honorable Conditions) by reason of defective enlistment and induction due to fraudulent entry .

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the attached document/letter:

“WHY AN UPGRADE OR CHANGE IS REQUESTED AND JUSTIFICATION FOR THE REQUEST

The discharge was inaccurate because I did not fraudulently enter the military.

In 2001, I applied for the health profession scholarship through the Navy. I did not qualify for their program because they diagnosed me with mitral valve prolapse with mild regurgitation (SEE EVIDENCE #1). One year later, I received a letter which stated the Navy was able to waive this medical condition and allow me to practice optometry in the Navy after all.

In February 2004, I suffered an anxiety attack and went to the emergency room. It was after this minor short-lived medical problem when the Navy decided to Captain’s Mass me (without having any previous military training) and discharge me in April 2004 for allegedly fraudulently entering the military.

Mitro value prolapse ( which the Navy gave me a waiver for) although a very benign condition is known to cause anxiety attacks. I have never been diagnosed with an axiety disorder of any kind previous to the Navy. Before the Navy I did not know I had a miro valve prolapse, it was discovered after the Navy ordered an echocardiogram upon entry.

On my original medical history form I completed in November of 2000, I checked NO, for “nervous trouble of any sort”, which was somehow the basis for fraudulent entering the military (SEE EVIDENCE #2).

NOTE: The report of medical history form I completed in November of 2000 does not have a current OMB control number. The new revised report of medial history form (SEE EVIDENCE #3) clearly states and I quote:

“Respondent should be aware that notwithstanding any other provision of law, no person shall be subject to any penalty for failing to comply with a collection of information if it does not display a currently valid OMB control number.”

I would like please for the fraudulently entering the military portion of my record to be removed and my discharged changed from general/under honorable conditions to honorable.

Thank you, [signed], Dr. J_ N_, OD (Applicant)”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from R. A. B_, Captain, Medical Service Corps, USN, dtd May 24, 2001
Reports of Medical History, dtd November 21, 2000 (3 pgs)
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: None
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20020501             Date of Discharge: 20040402

 Length of Service (years, months, days):

         Active: 01 11 02
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence:    None
         Confinement:                       None

 Age at Entry: 27

 Years Contracted: 8

Education Level: NA*                                AFQT: NA*

 Highest Rate: OCSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NA*                  Behavior: NA*    OTA: NA*

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal
* Not Available


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

GENERAL (UNDER HONORABLE CONDITIONS)/ FRAUDULENT ENTRY INTO MILITARY SERVICE, authority: MILPERSMAN, Article 1910-134 (formerly 3630100).
Chronological Listing of Significant Service Events :

001121:  Report of Medical Examination upon entry: Applicant failed to disclose history of anxiety disorder/panic attacks.
040222:  Medical evaluation by Psych Clinic at Naval Medical Center San Diego.
          Admission Diagnosis:
 Panic disorder without agoraphobia, partner relational problems.
          Principal Diagnosis:
Axis I: Adjustment Disorder with mixed disorder of emotions and conduct, panic disorder, marital problems, r/o alcohol abuse.
Secondary Diagnosis/Complications:
AXIS II: deferred, AXIS III: hypertension mitral valve prolapse, Axis IV: primary support, AXIS V: GAF 51-60 current 71-80 highest.
040225:  Command Legal Officer’s Recommendation: Applicant met with Command Legal Officer on 040223 and admitted that he had been suffering from and treated for anxiety disorder since his freshman year in college. He stated that he has had multiple visits to the ER during his undergraduate program where he went to he ER with anxiety/panic attacks and has been treated with multiple drugs to include BUSPAR, XANAX, PAXIL, and TOPROLOL. Recommend dispose of fraudulent enlistment at Captain’s Mast, and if found guilty, process for a “General Discharge”.
040302:  NJP for violation of UCMJ, Article 83: In that OCSN J_ J. N_, U.S. Navy, Navy Recruiting District, San Diego, did, at or near Navy Recruiting District Houston, Texas on or about 21 November 2000, by means of deliberate concealment of the fact that he had a prior history of excessive worry or nervous trouble to wit: having been treated in the emergency room for anxiety disorder/panic attacks on divers occasions during his undergraduate education, a condition that is considered permanently disqualified by COMNAVCRUITCOMINST 1131.2B dated November 1999, procure himself to be enlisted as a Officer Candidate Seaman in the United States Navy, and did thereafter, at or near Navy Recruiting District, Houston, Texas and San Diego, California receive pay and allowances under the enlistment so procured.
         Award: Oral reprimand. No indication of appeal in the record.
040305:  Administrative Separation Processing, Notification Procedure [Extracted from CO’s letter].
040315:  Commanding Officer, Navy Recruiting District, San Diego, directed the Applicant's discharge with a general (under honorable conditions) by reason of fraudulent entry into military service.

Service Record contains a partial Administrative Discharge package.
Service Record is missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20040402 by reason of defective enlistment and induction due to fraudulent entry (A) with a service characterization of general (under honorable conditions. 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).

 Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question. No such impropriety or inequity is evident during the Applicant’s enlistment. The Applicant contends that he did not fraudulently enter the military service because he did not have a diagnosed disqualifying anxiety disorder prior to the Navy. 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. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that his anxiety disorder developed after he joined the Navy. To the contrary, the record does contain evidence suggesting the Applicant had anxiety disorders prior to his enlistment. In an interview with the Command Legal Officer of Navy Recruiting District, San Diego, the Applicant purportedly admitted to having anxiety attacks since his freshman year in college. The Applicant further stated he had used anti-anxiety medications such as BUSPAR, XANIX, and PAXIL, to control his attacks and withheld this information from his recruiter on the belief his disorder was under control. Based upon this evidence, the Board concluded sufficient evidence exists to believe the Applicant committed a fraudulent enlistment. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. Relief denied.

The Applicant further contends that he should not have been punished for failing to disclose his anxiety disorder because of a lack of a valid OMB control number on his paperwork. After careful scrutiny, the NDRB could discern no error with the OMB control number on the Applicant’s paperwork. The OMB number is present and valid through 20061031. The Applicant’s issue is without merit. 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. 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 2 May 2005, 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, Para 211, Regularity of Government Affairs .


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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