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NAVY | DRB | 2005_Navy | ND0501542
Original file (ND0501542.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND05-01542

Applicant’s Request
The application for discharge review was received on 20050920. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable and the Narrative Reason for Separation be changed to “medically discharged.” 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 20060621. 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 by reason of erroneous entry.
PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“The way my DD 214 is currently written looks as if I deliberately lied to enlist. In 1997, I had hernia repair. In 2/1998, my doctor cleared me, with no restrictions. In Jul 98 I started working with the recruiter to enlist in the Navy. I told him about the hernia and provided him with the letter from my doctor. He said no waiver was needed. I went for my enlistment physical and put the information on the Report of Medical History. Both the recruiter & medical personnel were made aware of my condition. During basic training, I was carrying 3 loaded sea bags and felt I had re-injured the hernia. I went to see the doctor and instead of treating me, they started the process to discharge me. I felt as if they were trying to get rid of me. They also made me feel as if I had lied about my condition.”

 Applicant’s Remarks: (Taken from the DD Form 293 [and/or] from an attached document/letter to the Board.)

I am requesting this change for the following reasons:
1. I feel as if I was not given the opportunity to serve my country. After I got home, I saw my doctor. He treated my condition with antibiotics and rest. I was better within 2 weeks and have never had any other problems with this. If the Navy had treated me and allowed me to get better, I could have gone on to serve the full five years I enlisted for.
2. I feel when people look at my DD214 and see the reason for separation, that they believe I lied about my medical condition. I fully disclosed my condition to my recruiter and medial personnel at MEPS. They chose to allow me to enlist.
 3. I would like to be able to enlist in one of the branches of the military service. My DD 214, as it is now, will not permit this.

 Documentation
In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:
Letter from T_ P. S_, MD, dtd September 17, 1998
Applicant’s DD Form 214
Twenty-five pages from Applicant’s service and medical records

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19980918 - 19981021      COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 19981022             Date of Discharge: 19981127

 Length of Service (years, months, days):

         Active: 00 01 06
         Inactive: None

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

 Age at Entry: 19

 Years Contracted: 4 (12 month extension)

 Education Level: 12                                 AFQT: 31

 Highest Rate: SR

 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


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

UNCHARACTERIZED CONDITIONS) /ERRONEOUS ENTRY (OTHER), authority: NAVMILPERSMAN, Article 1910-130 (formerly Article 3620280).
Chronological Listing of Significant Service Events :

981117:  Medical evaluation at Naval Hospital Branch Medical Clinic: Problem: testicle pain. Assessment: Due to the patients continued complaint of L testicle pain, history of similar pain which EPTE. Congressional complaints from his parents and the patients poor motivation it is recommended that an ELMS package be prepared.
981117:  Entry Level Medical Separation: ELMS for EPTE condition. Diagnosis: Chronic pain, testicular/groin. This condition is not correctable to meet Navy standards. Patient instructed to follow-up with known civilian provider.
981120:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of defective enlistment and induction due to erroneous enlistment as evidenced by chronic testicular pain.
981120:  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.
981123:  Commanding Officer, Recruit Training Center, Great Lakes, IL directed the Applicant's discharge with an entry level separation by reason of defective enlistment and induction into the naval service due to erroneous enlistment as evidenced by chronic testicular pain. Commanding Officer’s comments: “As evidenced by enclosure (3), an erroneous enlistment has occurred. I authorize separation from the naval service for an Entry Level Separation. Reentry Code: RE-4.”


*Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19981127 by reason of defective enlistment and induction due to failed medical/physical procurement standards (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 Applicant requests a change to his discharge characterization to honorable and his narrative reason to medical discharge. The Applicant contends that the reason for separation on his DD214, gives the perception that he lied about his medical condition.
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 service member’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 36 days in the military to warrant a change of discharge to honorable. The NDRB advises the Applicant that the evidence of record corroborates the Applicant’s statement that he revealed his past medical condition prior to enlistment. However, upon re-injury he was diagnosed on 19 981117 , by qualified medical officer, as possessing chronic pain, testicular/groin, and that the condition was not correctable to meet Navy standards. The Applicant was recommended for Entry Level Medical Separation and instructed to follow-up with known civilian provider. For the edification of the Applicant, a member may be separated on the basis of erroneous enlistment, when the following conditions exist:

“The enlistment would not have occurred if the relevant facts had been known by the Navy Department or had appropriate directives been followed
It was not the result of fraudulent conduct on the part of the member
The defect is unchanged in any material respect.”

In the Applicant’s case, the Board could discern no impropriety or inequity in the Applicant’s discharge. Therefore, the NDRB considered the Applicant’s discharge proper and equitable. Relief denied

 The Applicant states, “I would like to be able to enlist in one of the branches of the military service. My DD 214, as it is now, will not permit this”. 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 following is provided for the edification of the Applicant. 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 Naval service. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided sufficient post-service documentation for the Board to consider. 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 additional evidence related to this 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 5420.174D 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 .

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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