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NAVY | DRB | 2007_Navy | ND0700173
Original file (ND0700173.rtf) Auto-classification: Denied
ex-AR, USN
ND07-00173
Current Discharge and Applicant’s Request
Application Received: 2020061128 Characterization Received: (ENTRY LEVEL SEPARATION)
Narrative Reason: FRAUDULENT ENTRY INTO MILITARY SERVICE (OTHER) Authority: MILPERSMAN 1910-134

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to:
Applicant’s Issues:       1. Reenlistment
                           2. Enlistment was not erroneous or fraudulent.


Decision

 By a vote of the Characterization shall .     
By a vote of the Narrative Reason shall FRAUDULENT ENTRY INTO MILITARY SERVICE .
Date: 20 070913                                       Location: Washington D.C.

Discussion

 Issue 1 : either which the Board cannot form the basis of relief for the Applicant, or the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum regarding .

Issue 2 ( ): The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character ization of service and/or the reason for discharge if such change is warranted. The Applicant’s medical record documents the discovery in the Applicant’s civilian health record an undisclosed diagnosis of mental disorders, treatment through out the Applicant’s high school years and prescription medication taken to correct these mental conditions. These past medical treatments were not disclosed during the Applicant’s enlistment process despite the multiple opportunities given by the recruiter, MEPS, and MOT. The Applicant was subsequently properly administratively processed and discharged in accordance with MILPERSMAN 1910-134 .

For the information of the Applicant, 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 two months of service to the U. S. Navy to warrant a change of his characterization of service .

The Applicant should also 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.
In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence (including evidence submitted by the Applicant ) to rebut the presumption. After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that


Administrative Corrections to the Applicant’s DD 214

 The NDRB did note administrative error s on the original DD Form 214 :

         “ UNCHARACTERIZED ”
         “ FRAUDULENT ENTRY INTO MILITARY SERVICE ”
        
The NDRB will recommend to the C ommander, Navy Personnel Command, that the DD 214 be corrected as appropriate.


Summary of Service

Prior Service:
 Inactive: US N R (DEP)      20050818 - 20050922             
Active:                  
Period of Service Under Review:
 Date of Enlistment: 20050923      Years Contracted : 4      Date of Discharge: 20051202
Length of Service :    Yrs 2 Mths 10                           Lost Time:
Education Level: 12       Age at Enlistment: 2 1     AFQT: N/A         Highest Rank /Rate : AR
Evaluation marks (# of occasions):       Performance: N/A          Behavior: N/A     OTA: N/A
Awards and Decorations ( per DD 214): NONE


Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

 20051116 :        Naval Hospital, Great Lakes. Applicant referred following suicidal ideation, crying since arrival to RTC, and the statement that “he wanted out of the Navy.” Applicant disclosed a history of treatment for ADHD with Wellbutrin between the 9 th and 12 th grades. Civilian mental health records document treatment for ADHD which ended on 26 Aug 2002 but annotated other health care problems, including Tourette’s syndrome, learning disabilities,
         Diagnosis: Attention-Deficit/Hyperactivity disorder ; Learning Disorder ; Depressive Disorder ; Tourette’s Disorder
         Plan/Recommendation: 1) Entry level separation due to disqualifying psychiatric condit i on 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 encouraged to seek treatment for this condition upon separation. SR was educated regarding this condition and recommended for care following separation. SR is suitable to report to Separations Division.


Discharge Process

 Date Notified:                                       20051123
Reason for Discharge:     -
         -
Least Favorable Characterization:       

Date Applicant Responded to Notification:                  20051123
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                        
         Administrative Board                       
         GCMCA review                               

Separation Authority (date):     CO, RECRUIT TRAINING CMD ( 200511 29 )
 Reason for discharge directed:  MilPersMan 1910-134
 Characterization directed:      (ENTRY LEVEL SEPARATION)
Date Applicant Discharged:       20051202


Types of Documents Submitted by Applicant and Considered By Board

 Related to Military Service:      Service and/or Medical Record:            Other Records:

Related to Post-Service Period:         
         Employment:                        Finances:                          Education:               
         Health/Medical Records:                   Substance Abuse:                           Criminal Records:       
         Family/Personal Status:                   Community Service:                References:              
        
Additional Statements From Applicant:    From Representative:
Other Documentation (Describe)      


Pertinent Regulation/Law

 A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective
3 May 2005 until Present, Article 1910-134, 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 II, Para 211, Regularity of Government Affairs , Part V, Para 502, Propriety and Para 503, Equity .

ADDENDUM: Information for the Applicant

 Complaint Procedures : 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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity , OUSD (P&R) PI-LP , The Pentagon , Washington, DC 20301-4000 . You should read Enclosure (5) of the Instruction 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 Instruction 1332.28 and other Decisional Documents by going online at “ http://Boards.law.af.mil . ”

Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provi ded the 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. If a former member has been discharged for more than 15 years , has already been grante d a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

 Service Benefits: The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.
Employmen t / Educational Opportunities : The Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.

Reenlistment/RE-code: Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. 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.
Medical Conditions and Misconduct : DoD disability regulations do not preclude a disciplinary separation. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record. Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or “PTSD . ” Only the Board for Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - 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 may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.

Issues Concerning Bad-Conduct Discharges (BCD ) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief. With respect to a discharge adjudged by a court-martial, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed.

Board Membership: 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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