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NAVY | DRB | 2009_Navy | ND0901411
Original file (ND0901411.rtf) Auto-classification: Denied

ex-FA, USN
Current Discharge and Applicant’s Request
Application Received: 20090504
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN ()

 Applicant’s Request: Characterization change to:
                  Narrative Reason change to:

Summary of Service

Prior Service:
 Inactive:         US N R (DEP)        20060622 - 20060823     Active:  

Period of Service Under Review:
 Date of Enlistment: 20060824     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20061207      Highest Rank/Rate: FA
Length of Service : Y ear ( s ) M onth ( s ) 14 D a y ( s )
Education Level:        AFQT: 84
Evaluation M arks:         Performance: N/A          Behavior: N/A    OTA: N/A

Awards and Decorations ( per DD 214):      NONE

Periods of UA /C ONF :

NJP :
- 20061005 :       Art icle 92 ( Dereliction in the performance of duties)
         Awarded : Susp ended :

S CM :

SPCM:

C C :

Retention Warning Counseling:

- 20061005 :       For dereliction in the performance of duties.

NDRB Documentary Review Conducted (date):        20080328
NDRB Documentary Review Docket Number:   ND09-01411
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.
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 Commander, 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. Not enough time to review and comprehend the medical questions during the enlistment process.
2. Post-service conduct warrants consideration.
Decision

Date: 2010 0621 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 discharge if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant’s record of service included NAVPERS 1070/613 (Page 13) warning, and one nonjudicial punishment (NJP) for violation o f the Uniform Code of Mil itary Justice (UCMJ): Article 92 ( Dereliction in the performance of duties: willfully agreed to provide money for the service of ironing shirts f or a payment of $25.00 per week and for a payment of $150.00 during liberty weekend to another recruit as it was his duty not to do). After the NJP, the Applicant became depressed with suicidal ideations. He was initially admitted to the North Chicago Veterans Affairs (VA) Medical Center then transferred to a local hospital, and finally returned to the Great Lakes Recruit Evaluation Unit (REU). At REU, a staff psychologist reported, “Psychiatric treatment without hospitalization. SR [seaman recruit] reported that at the age of ten he was seen at an outpatient office for depression and social problems. SR reported that he was prescribed Prozac, Lithium, and other drugs he could not remember.” The staff psychologist diagnosed the Applicant with adjustment disorder with depressed mood and personality disorder not otherwise specified with borderline and passive-aggressive traits, existing prior to service (EPTS), and recommended entry level separation due to disqualifying psychiatric condition affecting the Applicant’s potential for performance of expected duties and responsibilities while on active duty. Per a letter dated 3 October 1994 , from a child and adolescent psychiatrist from the University of Texas Southwestern Medical Center at Dallas, the Applicant was taking Ritalin and Imipramine , had a history consistent with the diagnosis of attention deficit hyperactivity disorder (ADHD) and major depressive disorder , and that his suicidal ideation disappeared . The Applicant did not report his pre-service counseling or prescribed medication on his enlistment medical forms. Based on the Applicant’s failure to disclose a history of psychiatric treatment or counseling prior to entry into the naval service , his command administratively processed him for separation. When notified of administrative separation processing for Erroneous Enlistment and Fraudulent Entry into Naval Service using the procedure, the Applicant waived rights to consult with a qualified counsel, submit a written statement, or request a General Court-Martial Co nvening Authority (GCMA) review .

Note: The NDRB found a letter from the Medical Advisor, Navy Recruiting Command, Millington , TN, dated 16 June 2006, stating the Applicant does not meet the established physical standards due to history of tempanic membrane perforation and a waiver of the physical standards is not recommended, but found qualified for service on 24 August 2006 per his Report of Medial Examination ( DD Form 2808 ) .

Applicant Issue 1 : (Decisional) ( ) . The Applicant contends he did n ot have enough time to review and comprehend the medical questions contained in the Medical Prescreen of Medical History Report (DD Form 2807-2) of 30 May 2006 , during the enlistment process. The Applicant stated that when his DD Form 2807-2 was being filled out by the recruiter it required “rapid fire” answers, which did not allow time to review and comprehend them. During his hearing, the Applicant testified that he had visited a recruiter in February 2006, who gave the Applicant an enlistment package that contained the enlistment medical forms , and had met with the r ecruiter ten times prior to enlisting in August 2006. On the Report of Medical History (DD Form 2807-1) dated 31 May 2006, the Applicant also marked, “NO” to all the questions regarding ear, nose, or throat trouble, received counseling of any type, de pression or excessive worry, or had been evaluated or treated for a mental condition. Based on the Applicant’s testimony and documenta ry evidence , the NDRB determined the Applicant did have sufficient time to review and comprehend the questions contained in the enlistmen t medical forms.

Applicant Issue 2: (Decisional) ( ) . The Applicant contends his post-service conduct warrants consideration to change his narrative reason for separation to Secretarial Authority. The NDRB considers post-service conduct to determine if the reason for separation was indicative of the Applicant's character or an aberration. The Applicant provi ded limited materials for the ND RB to consider , specifically several lett ers of reference and his college degree plan . T he NDRB determined the post-service documentation as presented was insufficient to warrant a change in the narrative reason for separation. For the N D RB to have a better understanding of the Applicant’s character, current life style and confirmation that he is a contributing member to society, he could have provided documentation such as , but not limited to : additional letters of personal references ; verifiable employment record s or letter s of recommendation from his employers; certification of non-involvement with civil authorities ; evidence of financial stability ( e.g., mortgage, home rental history, credit score , credit card payment records ); college transcripts; and documentation of community or church service . The Applicant should be aware submission of these items alone does not guarantee relief as each di scharge is reviewed by the NDRB on a case - by - case basis to determine if post- service conduct mitigates the narrative reason for separation.

NDRB- Identified Issue : ( Decisional) ( ) PARTIAL . After careful review of the Applicant’s official service and medical records, and taking into consideration his testimony, the testimony of his witnesses, and the facts and circumstances unique to this case, the NDRB determined that if t he Applicant had remember ed and thus disclosed his early childhood treatment for ADHD, depression and suicidal ideations, he would have been denied enlistment into the U . S . Navy. Co n sidering this, the absence of fraudulent intent on the part of the Applicant and because he was notified for both Erroneous Entry and Fraudulent Entry , the NDRB determined Erroneous Ent ry (Other) is a more equitable narrative reason for separation and Secretarial Authority would not be appropriate. By majority rule, the NDRB voted to change the narrative reason for separation to Erroneous Entry (Other) , but by unanimous vote, the characterization shall remain as issued.

Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, and medical record entries, and discharge process, the Board found the discharge was proper and equitable at the time of discharge. However, based on equitable grounds, the awarded narrative reason for separation shall change to ERRONEOUS ENTRY (OTHER) and the awarded characterization of service shall remain UNCHARACTERIZED .



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 Disabled American 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 their 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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