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NAVY | DRB | 2009_Navy | ND0901811
Original file (ND0901811.rtf) Auto-classification: Denied

ex-SN, USN
Current Discharge and Applicant’s Request
Application Received: 20090616
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)        20041110 - 20050418     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20050419     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20050621      Highest Rank/Rate: SN
Length of Service : Y ear ( s ) M onth ( s ) 03 D a y ( s )
Education Level:        AFQT: 44
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 ”

         “ FRAUDULENT ENTRY ”
        
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 /To Representat ion :            From /To Congress m ember :         
Oth er Documentation :   


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

Applicant’s Issues

 1. Wants to know if he can reenlist or not.
2. Was discriminated against and the victim of conflict of interest and fraternization.
3. Never fraudulently enlisted.

Decision

Date: 20 10 0422             Location: Washington D.C .        R epresentation :

By a vote of the Characterization shall .
 By a vote of the Narrative Reason shall FRAUDULENT ENTRY .
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 included no evidence of misconduct that resulted in nonjudicial punishment (NJP) or court-martial. While in recruit training, the Applicant was falling behind his division in training, his fold and stow and attention to detail were sub-par, and his personal hygiene habits were poor. The Applicant was referred to the Recruit Evaluation Unit (REU) for ongoing difficulties with training and on the third visit to the REU was diagnosed with a learning disorder, not otherwise specified (NOS), existed prior to service (EPTS), and mood disorder Not Otherwise Specifiied ( NOS ) with hypomanic features (by history), EPTS. Based on his diagnosis, the Applicant was processed for administrative separation . When notified of administrative separation processing for both erroneous enlistment and fraudulent entry into Naval service using the notification procedure , the Applicant elected his righ ts to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority (GCMA) review. The NDRB did not find a copy of the GCMA review .

Issue 1 : (Nondecisional) The Applicant wants t o know if he can reenlist. . The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, and is not authorized to change a reentry (RE) code.

Issue 2 : (Decisional) ( ) . The Applicant contends he was discriminated against and the victim of a conflict of interest and fraternization. The Applicant stated he was subject to sexual harassment by a female commanding officer, discriminated for his religious b eliefs, and the naval officer who held his captain’s mast was the brother of the vice admiral who was to review his second appeal. The NDRB found no documentary evidence, nor did the Applicant provide any, to support his contentions that he was sexually harassed, discriminated against due to his religious beliefs, orthe alleged fraternization occurred. Without documentary evidence, the NDRB cannot form a basis of relief.
        
Issu e 3: (Decisional) ( ) . The Applicant contends he neve r fraudulently enlisted . The Applicant provided a statement from his pediatrician who stated the Applicant did see a psychiatrist in 1995 that his problems were not well characterized, but consisted of possible attention deficit disorder (ADD) and school problems. The pediatrician also stated the Applicant had functioned well and did not require medication. On the Applicant’s Medical Prescreen of Medical History Report (DD Form 2807-2) dated 8 Novemb er 2004, the medical examiner stated in the comments section the Applicant did have a psychology evaluation for ADD at age 14. Per the medical evaluation of 18 May 2005, the mental health professional stated the Applicant’s civilian medical records were ordered to confirm the Applicant’s previously undisclosed history of mental health treatment, including treatment with psychotropic medications, which included Prozac, Depakote and Ritalin. On his DD Form 2807-2, the Applicant marked, “NO” to block 2.a.(16), Have you ever had or do you have now: Seen a psychiatrist, psychologist, social worker, counselor, or other professional for any reason (inpatient or outpatient) including counseling or treatment for school, adjustment, family, marriage or any other problem, to include depression , or treatment for alcohol, drug or substance abuse (6)(2). The Applicant also signed a statement on 10 November 2004, that he did not tell his recruiter/liaison at the military entrance processing station (MEPS) about his cerebral palsy, 9/86 and migraine headaches, 9/89. Based on the evidence of record, the NDRB determined the Applicant did meet the requirement for separation by reason of defective enlistments and inductions – fraudulent entry into the Naval service.

For the Applicant’s information, because he requested an upgrade to General (Under Honorable Conditions), separation initiated while a member is within the first 180 days of continuous active duty will be described as an entry level separation except when the characterization of service as Under Other Than Honorable (OTH) is authorized or Honorable is clearly warranted. The Applicant had no misconduct that would rate an OTH discharge and there were no evidence of unusual circumstances involving personal conduct and per formance of military duty and which was approved on a case-by-case basis by the Secretary of the Navy that would merit an H onorable characterization . Therefore , an U ncharacterized discharge is considered the mo st appropriate characterization of service. 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 separation shall be c onsidered the equivalent of an Honorable or General (U nder Honorable C onditions) characterization.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, medical and r ecord e ntries, and d ischarge p rocess, the Board found Therefore, the awarded characterization of service shall and the narrative rea son 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 .

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 .


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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