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NAVY | DRB | 2011_Navy | ND1101266

Original file (ND1101266.rtf) Auto-classification: Denied

ex-SR, USN

Current Discharge and Applicant’s Request

Application Received: 20110420

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)        20080522 - 20081123     Active:

Period of Service Under Review:
Date of Current Enlistment: 20081124     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20081230      Highest Rank/Rate: SR
Length of Service: Y ear s M onth 07 D a ys
Education Level:        AFQT: 76
Evaluation M arks:         Performance: NONE         Behavior: NONE OTA: NONE

Awards and Decorations ( per DD 214):      NONE

Periods of UA /C ONF :

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

Administrative Corrections to the Applicant’s DD 214

The NDRB note d an administrative error on the original DD Form 214:

         “ 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:          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 22, effective 16 May 2008 until 9 November 2009, 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 seeks change in his discharge to re-enlist in the U.S. Armed Forces.
2.       Applicant seeks change in his discharge to increase employment opportunities.
3.       Applicant contends his discharge was improper/inequitable , because he forgot to disclose his childhood history of Attention Deficit/Hyperactivity Disorder ( ADHD ) dur ing the enlistment process.

Decision

Date: 20 1 2 06 21             Location: Washington D.C .        R epresentation : NONE

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 g overnment al affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Applicant identified one decisional issue for the Board’s consideration. The NDRB conducted a detailed review of the Applicant’s records to determine whether his discharge met the pertinent standard s for propriety and equity. The Applicant’s record of service did not include any NAVPERS 1070/613 (Page 13) retention warnings , commanding officer n onjudicial punishment , or trial by court s -martial. The records did contain an 8 December 2008 Recruit Training Center , Medical Department of Psychology , fitness for duty mental health evaluation in which the Applicant was diagnosed with Depression (existed prior to entry) and Personality Disorder N ot Otherwise Specified (NOS) (existed prior to entry). The examining physician stated , “The pt reported increased depression in boot camp. His RDC rate him as being below average in most categories and deficient in cleanliness and military behavior. I t is recommended that he no longer remain in the military as it is likely that his symptoms would continue to worsen to the point that he would be a risk to himself and/or others . ” Based on the fact that the Applicant failed to disclose a history of psychiatric treatment and psychotropic medication prior to entry in the Naval Service, his command administratively processed him for separation. When notified of administrative separation processing using the notification procedure on 16 December 2008 , the Applicant waived his rights to consult with a qualified counsel , submit a written statement , and request a General Court Martial Convening Authority review. The Applicant was not entitled to an administrative separation board. On 20 December 2008, the Commanding Officer, Recruit Training Center directed that the Applicant be administratively separated from the Navy with an Uncharacterized (Entry Level Separation) due to Fraudulent Entry i nto Military Service . The Applicant was discharged from the Navy as directed on 30 December 2008.

: (Nondecisional) The Applicant seeks a change in his discharge to re-enlist in the U.S. Armed Forces. 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 B oard for Correction of Naval Records 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.

: (Nondecisional) The Applicant seeks a change in his discharge to increase employment opportunities. The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities as regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

: (Decisional) ( ) . The Applicant contends his discharge was improper/inequitable , because he forgot to disclose his childhood history of ADHD during the enlistment process. The NDRB conducted a detailed review of the Applicant’s records to determine whether his discharge met the pertinent standards for propriety and equity. The service records contained the Applicant’s enlistment accession documentation that included the Report of Medical History questionnaire , which he completed on 17 September 2008. The Applicant submitted “No” answers

to the following questions: D o you have now or ever attempted suicide ; been evaluated or treated for a mental condition ; or have you ever been seen or consulted with a mental health professional, counselor, psychologist, or psychiatrist for any reason? Within the first two weeks of recruit training, the Applicant was referred to medical for a fitness for duty exam after stating he had attempted suicide in the past. The Applicant’s records contained an 8 December 2008 Recruit Training Center , Medical Department of Psychology fitness for duty mental health evaluation in which the Applicant was diagnosed with Depression (existed prior to entry) and Personality Disorder NOS (existed prior to entry). The evaluation indicated the Applicant had been diagnosed with ADHD and Depression in the 10th grade and had been prescribed the medication Stratera. Based on his observed performance while in recruit training and the mental health physician diagnosis and recommendation, the Applicant’s command processed him for administrative separation from the Navy.

By regulation, an U ncharacterized description shall be used when separation is initiated while a service member is in an entry level status (first 180 days of continuous active service) , except when separation is for certain prescribed situations (none of which apply to the Applicant) in which circumstances warrant characterization as U nder O ther T han H onorable 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 2 months in the military that would clearly warrant an H onorable characterization of service. After careful analysis and consideration of all the available evidence, the NDRB determined that the Applicant’s discharge was proper, equitable, and in accordance with the applicable orders and directives in effect at the time of his separation. Accordingly, the Board found the Applicant’s issue did not provide a basis for which relief could be granted. Relief denied.

Summary: After a thorough review of the available evidence, to include the Applicant’s s ummary of s ervice, and medical r ecord e ntries, and the administrative separation p rocess, 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 for additional information.

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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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 | 2011_Navy | ND1101266

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