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NAVY | DRB | 2005_Navy | ND0501140
Original file (ND0501140.rtf) Auto-classification: Denied


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

ex-AA, USN
Docket No. ND05-01140

Applicant’s Request
The application for discharge review was received on 20050628. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions). The Applicant requests a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293. Subsequent to the application, the applicant obtained representation by American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060131. 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 Uncharacterized 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 application and attached document/letter:

“1. I was told by my recruiter not to mention my medical issue at MEPS.

2. I was told the navy would provide medical treatment for my condition if needed.

3. Because of my anxiety, the medical evaluation unit had offered me a discharge and took the offer without really understanding its impact. I know what I did was wrong, but to be labeled “undesirable” or have a suspicious “general” disc arch for the rest of my life is too much to pay.

4. I should have gotten a medical disc arch because I was not medically qualified to serve at that moment.

5. I tried to serve and wanted to, but psychiatric problems I impaired my ability to serve.

6. I have always been good citizen before and after discharge.

7. The anxiety made me over exaggerates my personal problems with family.”
Representative submitted no issues.
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from Applicant, undated (3 pages)
Letter from Applicant, undated
Applicant’s DD Form 214
Recruit Evaluation Summary dated May 25, 2004
Evaluation letter from C_ J. L_, M.D., dated April 20, 2005
Oregon Board of Pharmacy Technician Registration, expiration September 30, 2005
Letter of Recommendation from H_ O. M_, Associate Pastor, dated May 28, 2005
Reference Letter from P_ J. A_, dated November 23, 2004
Employment Reference Letter from L_ C_, Pharmacist-In-Charge, dated November 8, 2004
Employment Reference Letter from E_ W. L_, RPH Manager, Hank Pharmacies dated March 10, 2004
Employment Reference Letter from S_ D_, RPH Pharmacy Manager, Sav-On Pharmacy, undated
Reference Letter from K_ A_, Branch Manager US Bank dated July 23, 2005
Account Statement from Portland Community College dated July 1, 2004
Placement/Permission Form from Portland Community College dated June 17, 2004
Letter from Department of Education dated July 1, 2004

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     20031024 – 20040503               COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 20040504             Date of Discharge: 20040602

 Length of Service (years, months, days):

         Active: 00 00 29
         Inactive: None

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

 Age at Entry: 24

 Years Contracted: 4

Education Level: 12                                 AFQT: 31

 Highest Rate: AA

 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): None.
* Not Available

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

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

030930:  Report of Medical History: Applicant failed to disclose pre-service treatment for depression and anxiety disorder.
040427:  Medical evaluation by Recruit Evaluation Unit: Applicant was initially referred to Recruit Evaluation Unit after he was taken to the hospital and treated for an anxiety attack. Applicant was referred back to REU because he disclosed a treatment history of anxiety that he previously withheld from the last REU visit, Military Entrance Processing Station, Moment of Truth and his recruiter. Applicant revealed he had psychiatric treatment on an outpatient basis at a variety of clinics.
         AXIS I: Anxiety Disorder, NOS, 300.00, EPTS
         AXIS II: Avoidant Personality Traits.
         Plan &Recommendation:
 1. Entry level separation due to disqualifying psychiatric condition affecting SR’s potential for performance of expected duties and responsibilities while on active duty, and poses risk if retained in USN.
2. SR was educated regarding this condition and encouraged to seek treatment following separation. SR is suitable to report to Separations Division.
040526:  Applicant notified of intended recommendation for discharge by reason of defective enlistment and induction due to erroneous enlistment as evidenced by an anxiety disorder and defective enlistment and induction due to fraudulent enlistment as evidenced by failure to disclose pre-service psychiatric treatment. Applicant notified that the least favorable characterization of service possible is general (under honorable conditions).
040526:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
040527:  Commanding Officer, Recruit Training Command directed the Applicant's discharge with an uncharacterized service by reason of defective enlistment an induction due to erroneous enlistment as evidenced by an anxiety disorder and defective enlistment and induction due to fraudulent enlistment as evidenced by failure to disclose pre-service psychiatric treatment.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20040602 by reason of defective enlistment and induction due to fraudulent entry (A) with a service characterization of uncharacterized. 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).

 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.

The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted. A member may be separated for defective enlistment and inductions – fraudulent entry into the Naval service for effecting a fraudulent enlistment by falsely representing or deliberately concealing any qualification or disqualification prescribed by law, regulation, or order. The evidence of record indicates that during the enlistment process, the Applicant denied any history of psychiatric treatment. On DD Form 2807, Questions 17a, 17f, and 17g, the Applicant denied having nervous trouble of any sort, depression and having been evaluated for a mental condition. While on active duty, the Applicant encountered anxiety attacks. During the course of his treatment, the Applicant revealed that he had undergone prior psychiatric treatment for both depression and anxiety attacks. Based upon the evidence of record, the Board was convinced that the Applicant wrongfully concealed his psychiatric treatment history for the sole purpose of effecting his enlistment into the Naval service. The Applicant's DD Form 214, Block 28, Narrative Reason for Separation, indicates he was separated by reason of defective enlistment –fraudulent entry. No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged. To change the Narrative Reason for Separation would be inappropriate. Relief denied.

The Applicant contends that his recruiter told him not to mention his medical issue at MEPS. There is a presumption of regularity in the conduct of governmental affairs. This presumption permits the Board to presume that the government’s agents acted in good faith, proceeded within the bounds of the law, and conformed their behavior to appropriate standards during the Applicant’s enlistment processing, active service, and subsequent administrative processing. 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 recruiter misled him. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. 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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