Upgrade.Vet

NAVY | DRB | 2009_Navy | ND0900896

Original file (ND0900896.rtf) Auto-classification: Denied

ex-SA, USN

Current Discharge and Applicant’s Request

Application Received: 20090304

Characterization of Service Received:

Narrative Reason for Discharge:

Authority for Discharge: MILPERSMAN FRAUDULENT ENTRY INTO MILITARY SERVICE

Applicant’s Request: Characterization change to:
                  Narrative Reason change to: MISC./GEN. REASONS

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        20030306 - 20040121     Active:

Period of Service Under Review:
Date of Enlistment: 20040122     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20040303      Highest Rank/Rate: SA
Length of Service : Y ear ( s ) M onth ( s ) 12 D a y ( s )
Education Level:        AFQT: 35
Evaluation M arks:         Performance: NFIR         Behavior: NFIR OTA: NFIR

Awards and Decorations ( per DD 214):

Periods of UA /C ONF :     NJP :     S CM :    SPCM:

C C :      Retention Warning Counseling :

Types of Documents Submitted/reviewed

Related to Military Service:
DD 214:         Service/ Medical Record:                  Other Records:

Related to Post-Service Period:
         Employment:                        Finances:                          Education /Training :
         Health/Medical Records:          Substance Abuse:                           Criminal Records:
         Family/Personal Status:          Community Service:                References:
Additional Statements :
From Applicant:        From Representat ion :    From Congress m ember :

Oth er Documentation :

Pertinent Regulation/Law

A. The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 2 May 2005, 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 .

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

1. Applicant is seeking a change in his reentry ( RE ) c ode and characterization of service to get a better job .
2. Applicant alleges he did tell the recruiter he took medication for Attention Deficit Disorder (ADD ) .
3. The Navy did not give him a psychiatric evaluation.
4. Applicant alleges he did disclose his pre-service diagnosis and treatment for ADD .

Decision

Date: 20 0 9 0702 Location: Washington D.C . R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall SECRETARIAL AUTHORITY .

Discussion

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharg e if such change is warranted. 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.

The Applicant’s record reflects the following: 1) O n 3 November 2002 , the Applicant comp leted the DD Form 2807 , Medical Prescreen of Medical History Report wherein he checked “no” to section 2, question 16 : Have you been s een by a psychiatrist, psychologist, counselor or other professional for … counseling or treatment for school, adjustment, family, marriage or any other proble m ; 2) The Applicant’s enlistment examination as contained in the DD Form 2807, Rep ort of Medical History, signed 5 November 2002, indicates the App l icant was t reated for Attention Deficit Disorder ( ADD ) with Ritalin from age 6 – 16 in Decatur, Alabama and had no remaining need for medication since 2000 ; 3) The Applicant entered active duty on 22 January 2004 , was evaluated on 19 February 2 0004 by a clinical psychologist at Recruit Evaluation Unit, who noted h e ha d symptoms of ADD/ Hyperactivity Disorder and recommended him for entry level separation due to this disq ualifying psychiatric condition; and 4) per the Commanding Officer’s (Recruit Training Command) letter of 26 February 2004, the Applicant was administratively separated due to i nduction due to fraudulent enlistment as evidenced by his failure to disclose pre-servi ce psychiatric treatment. When notified for a dministrative s eparation p rocessing, the Applicant waived rights to consult with qualified counsel and submit a written statement.

: (Non decisional issue) The Applicant is seeking to have his RE c ode changed to RE- 3 and the characterization of service changed to General ( U nder H onorable Conditions) to get a better job . The NDRB does not have the authority to grant the relief which the Applicant petitioned. The Applicant is directed to the Addendum , specifically the paragraph concerning and for additional information regarding .
Furthermore, b y regulation, an uncharacterized description shall be used when separation is initiated while a member is in an entry level status, except when separation is for certain prescribed situations (none of which apply to the Applicant) in which circumstanc es warrant characterization as Under Other Than Honorable C onditions, or when characterization of service as H onorable is clearly warranted by the presence of unusual circumstances involving personal conduct and performance of military duty and is approved on a case-by-case basis by the Secretary of the Navy. The Applicant's service record did not indicate any unusual circumstances of personal conduct or performance of duty during his less than two months in the military that would clearly warrant a General (Under H onorable Conditions) characterization of service. The NDRB advises the Applicant that with respect to non - service related administrative matters ( i.e. U.S. Department of Veterans Affairs bene fits, civilian employment, etc.) an uncharacterized separation shall be c onsidered the equivalent of an Honorable or General (U nder H onorable C onditions) characterization.

: (Decisional Issue) ( ) . The Applicant contends his narrative reason should be changed to miscellaneous or general reasons because of inappropriate actions of t h e recruiter who completed the premedical history report and marked the blocks with very little input from him . The Applicant also contends he never saw a mental health doctor, nor did t he Navy give him a psychiatric evaluation. The NDRB found the Applicant’s contention regarding his p rem edical history report being completed by his recruiter to be without merit since the form was signed by both the Applicant and his recruiter and the following language was directly above the Applicant’s signature : I certify the information on this form is true and complete to the best of my knowledge and belief, and no person has advised me to conceal or falsify any information about my mental and physical history . Accordingly, if t he Applicant disagreed with the contents of the report , he had a right and obligation to correct or contested it at the time he endorsed it . By sign ing the form in question , the Applicant verified that its content was correct. Additio n ally, the Applicant’s contention the Navy did not give him a psychiatric evaluation is refuted by the record of evidence which re flect s that prior to being discharged , the Applicant was evaluated by a clinical psychologist a nd diagno s ed with ADD.

Issue 4 : (Decisional Issue) ( ) The Applicant also contends he disclosed to the recruiter that while in high school he took medication provided by his pediatrician for ADD and gave the recruiter a letter from his pediatrician explaining his condition . The NDRB has determined t he Applicant’s contention that he notif ied the Navy of his pre-service diagnosis and treatment for ADD is supported by the evidence of record as indicated in the Report of Medical History, signed 05 November 2002 , mentioned supra . Pursuant to M ILPERSMAN 1910-134 , m embers may be separated for effecting a fraudulent enlistment, induction, or period of service by falsely representing or deliberately concealing any qualifications or disqualifications prescribed by law, regulation, or orders . The NDRB did find procedural deficiency in th at there was no basis for separation due to fraudulent enlistment since the evidence of record reflects that the Applicant did disclose his pre - service diagnosis of ADD on his enlistment physical . The refore, the NDRB voted unanimously to chang e the narrative reason to “Secretarial Authority . ”

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, r ecord e ntries, and d ischarge p rocess, the Board determined the awarded discharge characterization was proper , but that the discharge narrative reason was improper . Therefore, the awarded characterization of service shall and the narrative reason for separation shall change to SECRETARIAL AUTHORITY .

ADDENDUM: Information for the Applicant

Complaint Procedures : If you believe 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 : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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. There are veterans organizations such as the American Legion and the Association of Service Disable Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade. If a former member has been discharged for more than 15 years, has already been granted 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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. 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.

Employment/Educational Opportunities : The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the NDRB’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 BCNR can make changes to reenlistment codes. Additionally, the NDRB 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, 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 other medical related reasons. Only the BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct : The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. Outstanding post-service conduct, 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, is considered during Board reviews. Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle. The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate in-service misconduct was an aberration and not indicative of the member’s overall character.

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 special 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. The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership: The names and votes of the members of the NDRB 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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NAVY | DRB | 2009_Navy | ND0900896

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