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NAVY | DRB | 2009_Navy | ND0900965
Original file (ND0900965.rtf) Auto-classification: Denied

ex-SN, 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:

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        20070320 - 20070501     Active:  

Period of Service Under Review:
Date of Enlistment: 20070502     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20070608      Highest Rank/Rate: SN
Length of Service : Y ear ( s ) M onth ( s ) 07 D a y ( s )
Education Level:        AFQT: 61
Evaluation M arks:         Performance: NFIR         Behavior: NFIR   OTA: NFIR

Awards and Decorations ( per DD 214):      NONE

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

Retention Warning Counseling :

Administrative Corrections to the Applicant’s DD 214

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

         Decorations, Medals, Badges, Citations and Campaign Ribbons awarded or authorized, should read: “ NATIONAL DEFENSE SERVICE MEDAL ”

The NDRB will recommend to the C ommander, Navy Personnel Command , that the DD 214 be corrected as appropriate.
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), Change 11, effective 3 May 2005 until 16 May 2008,
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. Seeking to reenlist and re quest my reentry code changed.
2. Discharge was incorrect because I do not have asthma.
3. Seeking consideration for p ost-service conduct.
Decision

Date: 20 0 9 0810             Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall .
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 g overnment al affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.

The Applicant’s record of service reflects that on 16 May 2007 , she was seen a t Internal Medicine, Naval Hospital Great Lakes, to rule out a diagnosis of asthma. The physician indicated the following: 1) t he Applicant had a long history of asthma and fairly frequent Albuterol inhaler use, 2) she experienced shortness of breath with mild exertion and occasionally at rest; 3) she was unable to complete most PT and IT sessions, 4) her Pulmonary Function Test revealed mild baseline obstructive airway disease, 5) she tested positive on the Metha choline Challenge Test , and 6) she was diagnos ed as having Persistent Asthma (mild). T he Applicant was also seen at the USS TRANQUILITY Medical Center, Naval Hospital Great Lakes on that same day - 16 May 2007 , for an Entry Level Medical Separation for a sthma , a condition that was determined to have existe d prior to her entry into the military. During this examination a Pulmonary Function Test and Methacholine Challenge Test were performed to confirm the diagnosis [asthma] . The Applicant sign ed th is medical record on 16 May 2007 (the same day) , acknowledging she had been in formed of the diagnosis and suggested treatment.

Based on the Applicant’s failure to disclose her pre-service medical condition (asthma) , the command administratively processed for separation. Per the Administrative Separation Processing Notice of 30 May 2007, the Applicant was notified of administrative separation processing due to Defective Enlistment and Inductions - Erroneous and Fraudulent Entry into Naval Service - and she waived all of her rights except the right to obtain copies of all documents that would be forwarded to the Separation Authority . Per the Commanding Officer’s (Recruit Training Command) letter of 04 June 2007, the Applicant was discharged due to Fraudulent E nlistment and assigned a characterization of service as U ncharacterized .
        
: Nondecisional. The Applicant is seeking a change in her reenlistment code and the opportunity to reenlist i n the Navy. which the Board does not have the authority to grant the relief for which the Applicant petitioned. The Applicant is directed to the Addendum , specifically the paragraph concerning , for additional information regarding .

: (Decisional) ( ) . The Applicant is seeking an upgrade in the characterization of her service to H onorable and a change in her narrative reason (unspecified) based on the c onten tion that her discharge was incorrect because she does not have a sthma. P ursuant to Military Personnel Manual 1910-308 , members notified of intended recommendation for discharge within the first 180 days of enlistment are eligible for an U ncharacterized or E ntry- L evel S eparation characterization of service. Unless there were unusual circumstances regarding a service member’s performance or conduct that would merit an H onorable characterization, an U ncharacterized discharge is generally considered the most appropriate characterization of a member’s service. The evidence of record reflects one month after enli sting, the Applicant was diagnosed with asthma and separated from the military. The Applicant's service record did not contain any unusual circumstances regar ding her conduct or performance during her less than two months in the military to warrant a change of discharge to H onorable.

The NDRB advises the Applicant that with respect to nonservice related administrative matters ( i.e. Department of Veterans Affairs benefits, civilian employment, etc. ), an U ncharacterized discharge shall be considered the equivalent of an Honorable or General (Under Honorable C onditions) characterization of service .

Furthermore, the NDRB has determined the Applicant’s contention that she d id not have asthma at the time of discharge but was instead “not physically fit ” or “in shape” is contradicted by the medical e vidence of record as discussed supra . Additionally, t he Applicant’s medical record contains a Respiratory Department Patient Questionnaire of 16 May 2007 , wherein t he Applicant indicated that she had been diagnosed with asthma and bronchitis prior to joining the Navy , was treated at 8 years of age and was using an inhaler . The Applicant also sub mitted a letter from the Chicago State University Wellness/Health Center of 11 June 2008 , indicating she had a spirometry test performed on 04 June 2008 , and there was no evidence of obstructive lung disease. The NDRB determined th is evidence of a post-service diagnosis p rovided a year after her discharge was less persuasive than the medical evidence contained in her military records as previously discussed. Even though there were no medical records available to confirm a pre-service diagnosis of asthma, based on the symptom s t he Applicant reported to he r medical provider , medical test results and medications received during the one month s he was on active duty and her own admission to having asthma during her childhood , the NDRB determined t here was sufficient evidence to support a discharge due to F raudulent Entry into th e military service based on her failure to disclose a pre-service medical condition.

Issue 3 : ( ) ( Decisional) . T he NDRB has reviewed the character references submitted by the A pplicant ’s professor at Chicago State University and current employer and commends the Applicant for her post service accomplishments. H owever, th e NDRB has determined this evidence of post-service employment and academic achievements was not sufficient to justif y a chang e in the narrative reason or the characterization of her discharge

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries, and discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain .

The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge. The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct .]



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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