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NAVY | DRB | 2007_Navy | ND0700375
Original file (ND0700375.rtf) Auto-classification: Denied
ex-AR, USN
ND07-00375
Current Discharge and Applicant’s Request
Application Received: 20070130   Characterization Received:
Narrative Reason: FRAUDULENT ENTRY INTO MILITARY SERVICE (OTHER) Authority: MILPERSMAN 1910-134

 Applicant’s Request:      Characterization change to:
                           Narrative Reason change to: NOT IDENTIFIED
Applicant’s Issues:       1. Request Reenlistment code change
                           2. Narrative Reason is unjustified.

Decision

 By a vote of the Characterization shall .     
By a vote of the Narrative Reason shall ERRONEOUS ENLISTMENT .

Date: 20 071018             Location: Washington D.C .         Representative: Private R epresentative

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 Applicant contends he identified to his Recruiter that he had been treated for ADHD during his juvenile years and that the Recruiter advised the Applicant not to divulge this information upon entry into the Navy. The Board found that the Applicant’s contention was consistence with information the Applicant provided to the Recruit Mental Health Department the Great Lakes Recruit Training Center . Fraudulent enlistment is proper when there has been a deliberate material misrepresentation, including the omission or concealment of facts which, if known at the time, would have reasonably been expected to preclude the Sailor’s eligibility for enlistment. The NDRB believes that erroneous enlistment best describes the narrative reason for discharge based upon the description that the action would not have occurred had the relevant facts been known by the Navy or had appropriate directives been followed. Therefore, the Board directs that the Applicant’s Narrative Reason for Separation be changed to “Erroneous”.

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. 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

Summary of Service

Prior Service:
 Inactive: NONE                                       Active:
Period of Service Under Review:
 Date of Enlistment: 20021217               Years Contracted :        Date of Discharge: 20040120
Length of Service : 00 Yrs 01 Mths 18 D ys          Lost Time : Days UA: Days Confine d :
Education Level:         Age at Enlistment:       AFQT: 42          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

 20031203:        Applicant to active duty.

 20040106 :        Medical Record: Reason for visit: Applicant revealed prior psychiatric treatment and revealed a psychotropic medication history.
         Diagnosis: Attention-Deficit/Hyperactivity disorder, not otherwise specified, EPTS
         Recommendation: Entry level separation due to disqualifying psychiatric condition.

Discharge Process

 Date Notified:                                       20040108
Reason for Discharge:     -
         -
Least Favorable Characterization:       

Date Applicant Responded to Notification:                  20040108
Rights Elected at Notification:
         Consult with Counsel                      
         Obtain Copies of Documents               
         Submit Statement(s) (date)                        
         Administrative Board                       
         GCMCA review                               

Commanding Officer Recommendation (date):       
Separation Authority (date):     COMMANDING OFFICER, RECRUIT TRAINING COMMAND ( 20040113 )
 Reason for discharge directed:  -
Characterization directed:     
Date Applicant Discharged:       20040120

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), re-issued October 2002, effective 22 August 2002 until
25 January 2004, 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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