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NAVY | DRB | 2010_Navy | ND1001469
Original file (ND1001469.rtf) Auto-classification: Denied

ex-AN, USN
Current Discharge and Applicant’s Request
Application Received: 20100518
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

Applicant’s Request:      Characterization change to:      
         Narrative Reason change to:       PRE-EXISTING HEALTH CONDITION

Summary of Service

Prior Service:
Inactive:         US N R (DEP)        20090210 - 20090318     Active:  

Period of Service Under Review:
Date of Current Enlistment: 20090319     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20091016      Highest Rank/Rate: AN
Length of Service : Y ear s M onth s 28 D a ys
Education Level:        AFQT: 99
Evaluation M arks:         Performance: NOB          Behavior: 2.0 ( 1 )        OTA: 2.00

Awards and Decorations ( per DD 214):      Pistol

Periods of UA /C ONF :

NJP : NONE        S CM : NONE       SPCM:    C C :     Retention Warning Counseling : NONE

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:           Rehabilitation/Treatment:                  Criminal Records:       
         Personal Documentation :           Community Service:                References:     
         Department of VA letter:                  Oth er Documentation:    
                  Additional Statements :
         From Applicant:            From /To Representation:            From /To Congress m ember :        

Pertinent Regulation/Law

 A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 11 effective 20 June 2005 until Present, Article 1910-130, Separation by Reason of Defective Enlistments and Inductions - Erroneous Enlistment.
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. Nondecisional issue: The Applicant seeks a change in his reenlistment code, contending that it infers a negative discharge and is preventing him from achieving gainful employment.

Decisional issues : (1) The Applicant contends that his characterization of service at discharge was inequitable in that he was discharged due to not meeting medical enlistment standards, not any conduct or performance - related issues. (2) The Applicant seeks a change in his narrative reason for separation, contending that Erroneous Enlistment infers that he attempted to defraud the government and is preventing him from achieving gainful employment.

Decision

Date: 20 1 1 0818            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 NDRB 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 A pplicant identified two decisional issues for the NDRB’s consideration. Additionally , the NDRB completed a thorough review of the Applicant’s military service record, administrative separation package, the circumstances that led to the discharge, and the discharge process to ensure the discharge met the pertinent standa rds of equity and propriety.

The Applicant was a Resident Alien who enlisted in the Navy at age 2 6 without requirement for waiver of any enlistment standards or requirements. The Applicant’s record of service includes no NAVPERS 1070/613 retention-counseling warnings and no judicial or nonjudicial punishments. The local Separation Authority at the Naval Air Technical Training Center Pensacola separated the Applicant pursuant to Article 1910-130 of the Naval Military Personnel Manual (MILPERSMAN) – Defective Enlistment and Induction, Erroneous Enlistment. On 21 September 200 9 , the Applicant was notified of the command ’ s recommendation for separation using the notification procedure. H e was advised that the command was recommending that he be separated pursuant to Article 1910-120 (Convenience of the Government, Physical or Mental Condition) and Article 1910-130 (Erroneous Enlistment) ; he was further advised that the least favorable characterization of service possible was a General (Under Honorable Conditions). The Applicant elected to waive his right to consult with qualified legal counsel and chose not to submit a written statement to the Separation Authority. T he Separation Authority directed that the Applicant be discharged for Defective Enlistment or Induction – Erroneous Enlistment and that the Applicant’s characterization of service at discharge be General (Under Honorable Conditions) . The Separation Authority further directed that the re-enlistment code assigned be RE-3E - eligible for reenlistment ex c e p t for disqualifying factor; induc ted/enlisted/extended/reenlisted in error .

: (Nondecisional) – The Applicant seeks a change in his reenlistment code, contending that it infers a negative discharge and is preventing him from achieving gainful employment. The NDRB has no authority to change a reentry code ; o nly the service or the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. Bureau of Naval Personal Instruction 1900.8D is the guiding reference regarding reenlistment codes. If the Applicant seeks to contend that the definition of the reentry code received (as specified above) is not accurate or factually correct to his discharge action, he may petition the BCNR using standard DD Form 1 49. When requesting this change, the Applicant should provide as much documentation regarding h is medical disqualifying factor as possible. The BCNR’s address is: Board for Correction of Naval Records, 2 Navy Annex, Washington, DC 20370-5100. Further information can be found online at http://www.donhq.navy.mil/bcnr/bcnr.htm .



(Decisional) ( ) PARTIAL . The Applicant contends that his characterization of service at discharge was inequitable in that he was discharged due to not meeting medical enlistment standards, not any conduct or performance - related issues. Furthermore, the Applicant seeks a change in his narrative reason for separation, contending that Erroneous Enlistment infers that he attempted to defraud the government and is preventing him from achieving gainful employment.

Propriety - In accordance with the MILPERSMAN, a member of the Naval Service may be separated on the basis of erroneous enlistment when that enlistment would not have occurred if relevant facts had been known by the Department of the Navy and the enlistment was not the result of fraudulent conduct on the part of the service member. In the Applicant’s specific case, he was separated due to not meeting the physical standards for induction into the naval service in accordance with the Navy Manual of the Medical Department (MANMED) . The error regarding enlistment was discovered during a routine medical record review; the Applicant was subsequently retested and found to still not be qualified. The Applicant’s enlistment DD Form 2808 (Medical Evaluation) clearly documented that he had failed the induction hearing test, was not qualified for enlistment, and should not have been inducted by the Navy .

The Applicant was separated from the service due to medically not meeting the physical standards for enlistment. An appropriately credentialed medical health care provider diagnosed the Applicant’s hearing loss ; after follow-up and confirmation, the medical care provider notified the command of the disqualifying condition and recommended that he be separated due to Erroneous Enlistment pursuant to Article 1910-130 of the MILPERSMAN. The Applicant’s medically disqualifying condition was diagnosed appropriately and a review of the enlistment physical confirms disqualifying hearing loss, prior to induction. Based on a review of all the available records and the Applicant’s official statement, the NDRB determined that the Applicant was separated properly from the Naval Service as authorized by MILPERSMAN 1910-130. As such, on th e basis of propriety, no change is warranted.

Equity - The Applicant contends that his characterization of service at discharge was inequitable in that he was discharged due to not meeting medical enlistment standards, not any conduct or performance - related issues. A n Honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate. Conversely, a General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful , but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record . The Applicant’s service record contains no document ed misconduct o f record, no administrative counseling entries, and no pending disciplinary action. The only performance evaluation in the Applicant’s service record was the evaluation submitted upon discharge; based on the remainder of the Applicant’s service record, the NDRB opined that this low evaluation was likely negatively influence d by the discharge action as it did not coincide with the remaining documentation of his service. Moreover, in accordance with Article 1910-130 and 1910-300 of the MILPERSMAN, characterization of service for this narrative reason for separation shall be Honorable, unless an E ntry L evel S eparation or void enlistment (an order of release from custody and control of military services) is required.

The NDRB determined the quality of the Applicant’s service met the standards of accepted conduct and performance of duty for military personnel, and it is appropriate to characterize that service under honorable conditions. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned no impropriety in the discharge action but did discern an inequity in the characterization of the Applicant’s service. By a vote of 5-0 , the NDRB voted to upgrade the Applicant’s discharge characterization of service to Honorable ; by the same v ote , the narrative reason for the discharge, E rroneous E nlistment , shall remain as issued. Partial relief warranted .

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 found Therefore, the awarded characterization of service shall , however, 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 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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