ex-SR, USN

Current Discharge and Applicant’s Request


Applicant’s Request:     Characterization change to:     
         Narrative Reason change to:      ERRONEOUS ENLISTMENT
         Reentry Code change to:

Summary of Service

Prior Service:
Inactive:        USNR (DEP)       20130226 - 20130520     Active: 

Period of Service Under Review:

Date of Current Enlistment: 20130521     Age at Enlistment:
Period of Enlistment: Years Extension
Date of Discharge: 20130807      Highest Rank/Rate: SR
Length of Service: Year(s) Month(s) 17 Day(s)
Education Level:         AFQT: 81
Evaluation Marks:        Performance: NOB         Behavior: NOB    OTA: NOB

Awards and Decorations (per DD 214): NONE

Periods of UA/CONF:

NJP:     SCM:     SPCM:    CC:      Retention Warning Counseling:

NDRB Documentary Review Conducted (date):        20141002
NDRB Documentary Review Docket Number:   ND14-01291
NDRB Documentary Review Findings:                 Proper as issued and that no change is warranted.

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:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        

Types of Witnesses Who Testified

         Expert:           Character:      


Pertinent Regulation/Law

A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 29, effective 10 November 2009 until Present, 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 IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications.

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

Applicant’s Issues

1.       The Applicant would like to have his re-enlistment code changed in order to re-enter the Navy.
2.       The Applicant contends his discharge was inequitable because the mental health diagnoses that served as the basis of his fraudulent entry separation were not valid or correct diagnoses.
3.       The Applicant contends that his narrative reason for separation should change to erroneous enlistment and his characterization of service should change to honorable as he committed fraud on the advice of and with coaching from his father, an active duty senior chief with over 23 years of active service at the time.

Decision

Date: 20150716            Location: Washington D.C.        Representation:

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall .
By a vote of the Reenlistment Code shall .
By a vote of 3-2 the Separation Code shall JFC .

Discussion

As a result of the Applicant’s pre-service diagnosis of mental health conditions including bipolar disorder, attention deficit hyperactivity disorder, and oppositional defiant disorder and in accordance with U.S. Code, Title X, Section 1553 (e)(2), the Naval Discharge Review Board included a member who is a physician, clinical psychologist, or psychiatrist. The Applicant’s service record documents the Applicant was diagnosed with these disorders before enlistment in the armed forces.

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 Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included no NAVPERS 1070/613 (Page 13) warnings and no misconduct resulting in nonjudicial punishment or court-martial. Based on the the discovery of several disqualifying mental health conditions in his pre-enlistment medical record, none of which were disclosed during the enlistment process, command administratively processed for separation. When notified of administrative separation processing using the procedure, the Applicant exercised rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority review.

: (Nondecisional) The Applicant would like to have his re-enlistment code changed in order to re-enter the Navy. Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code. Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. An unfavorable discharge characterization, narrative reason for separation, and/or “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 based upon the needs of the service.

: (Decisional) () . The Applicant contends his discharge was inequitable because the mental health diagnoses that served as the basis of his fraudulent entry separation were not valid or correct diagnoses. The NDRB found that the documentation and statements provided for review do not refute the presumption that the Applicant deliberately misrepresented his mental health treatment history during the enlistment process, including the omission or concealment of facts which, if known at the time would have reasonably been expected to preclude, postpone, or otherwise affect the servicemember’s eligibility for enlistment or induction. Federal law requires all persons applying for enlistment in the military to disclose all sealed, expunged, or juvenile records. Therefore, the Applicant had an obligation to truthfully and fully answer all questions regarding his mental health history. Regardless of the Applicant’s current mental health evaluation his failure to truthfully and fully disclose information regarding his pre-service mental health history characterized the conditions of his enlistment as fraudulent. Upon discovery of his fraudulent entry, the NDRB found his command’s actions to be both proper and equitable at the time of his discharge processing. Relief denied.

: (Decisional) () . The Applicant contends that his narrative reason for separation should change to erroneous enlistment and his characterization of service should change to honorable as he committed fraud on the advice of and with coaching from his father—an active duty senior chief with over 23 years of active service at the time. The NDRB strongly considered the sworn oral testimony of the Applicant’s father, who remains an active duty senior chief, that he directed his son to not disclose his prior mental health treatment history and coached him for answering questions concerning his history and how to answer questions during his screening and indoctrination. The NDRB noted the significant family difficulties cited during the Applicant and his father’s testimony, to include documentation of his brother’s death and the conditions and circumstances leading up to it, as contributing factors in the decision for his fraudulent enlistment. While the Applicant and his father may feel that their family difficulties were a contributing factor to their decision to conceal facts that if known would have reasonably been expected to preclude, postpone, or otherwise affect the Applicant’s eligibility for enlistment or induction, they do not override the orders and directives that regulate entry into the Naval Service. The NDRB found this testimony to be credible in that the Applicant’s father, as an authority figure both as a parent and senior enlisted member of the Naval service, had and continues to have readily visible, significant influence over the Applicant.

As such, neither the Applicant nor his father, as an active duty senior enlisted member makes the determination as to whether or not pre-service events are pertinent or not. Furthermore, had this information been revealed to a recruiter, the recruiter would not be authorized to make such a determination and would have to refer the Applicant’s enlistment package through a detailed screening process to determine if a waiver was required. There is now evidence in the record based upon the sworn oral testimony of the Applicant’s father that supports the contention that his father, as a senior enlisted member in the Navy, misled him through the recruitment process. The NDRB considered the Applicant’s father’s statements as mitigation on behalf of the Applicant in representing his condition; although not necessarily as evidence that the Applicant’s diagnoses were not valid either at the time of his enlistment or when originally diagnosed.

Prior to the Applicant’s enlistment, competent medical authorities diagnosed him with bipolar disorder, attention deficit hyperactivity disorder, and oppositional defiant disorder. Although the Applicant’s pre-enlistment medical diagnoses and extensive in-patient treatment was conducted and paid for through his father’s active duty Tricare association, the discovery of his mental health diagnoses were not made until shortly after he reported to boot camp. A 20 June 2013 assessment by a licensed clinical psychologist at the Recruit Evaluation Unit confirmed his pre-enlistment diagnoses and recommended separation due to the disqualifying nature of these conditions. The NDRB considered the pediatric provider note concerning his pre-enlistment mental health conditions and his post-service evaluation from the staff psychiatrist at the Dumfries Heath Clinic. Unless substantial and credible information exists to rebut the medical authority’s findings that occurred at or about the time of the Applicant’s separation from service, the NDRB does not have jurisdictional authority to override medical authority diagnoses or findings that result in administrative separation. A member may be separated on the basis of fraudulent enlistment, erroneous enlistment, reenlistment, induction, or extension of enlistment when the enlistment would not have occurred if relevant facts had been known by the Department of the Navy or had appropriate directives been followed. In this case, the relevant facts were within the Navy’s health care system notes but were not revealed by the Applicant on the advice of his father or accessed by recruiting personnel during his two month, 25 day delayed entry program period.

An Uncharacterized discharge is warranted when separation is initiated while a member is within the first 180 days of continuous active duty except when the characterization of service as Under Other Than Honorable Conditions (UOTHC) is authorized or Honorable is clearly warranted. The Applicant did not have misconduct that would rate an UOTHC discharge, and there was no evidence of unusual circumstances involving personal conduct and performance that would merit an Honorable characterization. Since the Applicant served only 78 days, an Uncharacterized discharge is the most appropriate characterization of service.

After a careful review of the Applicant’s post-service documentation and official service records, and taking into consideration his testimony, the testimony of his father, and the facts and circumstances unique to this case, the NDRB determined partial relief is warranted based on equitable grounds. The NDRB voted unanimously to change the narrative reason for separation to erroneous entry but, by majority vote, not change the characterization of service. Full relief was not granted, because the NDRB does not consider the Applicant’s time in service sufficient to merit a characterization change and the evidence and evaluations this board reviewed were not sufficient to conclusively determine the mental condition of the Applicant at the time of separation so as to recommend further modifications to his discharge. Furthermore, the NDRB does not have jurisdictional authority to override medical authority diagnoses or findings that result in administrative separation. Only the Board for Correction of Naval Records can grant this type of change. Partial relief granted.

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 remain UNCHARACTERIZED (ENTRY LEVEL SEPARATION) and the narrative reason for separation shall change to with a corresponding separation code of JFC.

The Applicant is not eligible for further reviews by the NDRB. The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149. Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm . 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: Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code. 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