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

 ex-AR, USN
Docket No. ND97-01342

Applicant’s Request

The application for discharge review, received 970904, requested that the characterization of service on the discharge be changed to honorable and reason for discharge be changed to “HONORABLE DISCHARGE WITH FULL BENEFITS”.  The applicant requested a documentary discharge review and listed no representative on her DD-293.

Summary of Review

A documentary discharge review was conducted in Washington, D.C. on 980908.  The NDRB determined that the discharge was improper but equitably reflects the quality of service rendered.  The discharge shall be changed to:  UNCHARACTERIZED (Entry Level Separation)/SECRETARIAL AUTHORITY, authority:  NAVMILPERSMAN, Article 3630900.

PART I - APPLICANT’S ISSUES (verbatim)

1.  Letter of July 19, 1997(6) – Cong. B_ S_ information contained therein. 
(typed as Annex A)

2.  Letter of August 25, 1997 – Navy Discharge Review Board information contained therein.  (typed as Annex B)

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Active:	None
	Inactive:	USNR (DEP)		950331 – 951015 	COG

Period of Service Under Review:

Date of Enlistment:  951016			Date of Discharge:  951130

Length of Service (years, months, days):

	Active:  00  01  15
	Inactive:  None

Age at Entry:  18				Years Contracted:  4

Education Level:  12				AFQT:  44

NEC:  None  					Highest Rate:  AR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA			Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Nonjudicial Punishment(s):  None	Court(s)-Martial:  None

Days of Unauthorized Absence:  None

Character, Narrative Reason, and Authority of Discharge:

UNCHARACTERIZED (Entry Level Separation)/FAILED MEDICAL/PHYSICAL PROCUREMENT STANDARDS, authority:  NAVMILPERSMAN, Article 3620280.

PART III - CHRONOLOGICAL LISTING OF SIGNIFICANT SERVICE EVENTS1

941011:	Civilian orthopedic doctor stated, “I examined A_ M_ on October 11, 1994.  She has no physical limitations and is in need of no follow up care or therapy.”

941019:	Report of Medical Examination: Initially disqualified for enlistment.  However, applicant was later found fit for enlistment after orthopedic consult for reconstructive knee surgery on both knees at 12 and 13 years of age.

941019:	Orthopedic Consult:  Applicant found to have a history of patellar dislocations now stable after surgical procedures.  “No limitations exist.  Chance of recurrent sublexations at patellar low.”
	
951016:	Joined Naval Recruit Training Command at Great Lakes, IL.

951106:	Branch Medical Clinic (BMC) 1017, Naval Hospital (NAVHOSP) Great Lakes, IL:  “18 y/o  SR c/o bil knee pains x 1 week.  Pain started while marching.  Pt describes pain present when went thru MEPS.  Prior history of patellar ligament surgery bil knees.  Pt also describes swelling present bilateral knees. . . . [analyzed as] chronic knee pain [with] effusion 2o prior surgery.”  The doctor recommended physical therapy, Motrin 500mg, Limited Duty for five days, and CNRS [no definition of this acronym available].

951107:	Musculoskeletal Ward, Branch Medical Clinic 1017, Naval Hospital, Great Lakes, IL:  Reason for order was due to prior surgery on knees.
	Report:  Films of both knees shows unremarkable knee joints.  There is no residual bone defect from a previous surgical procedure.  In the left side, there is minimal periosteal reaction at the lateral proximal fibula.  A stress fracture is a possibility.  Please correlate clinically.  The soft tissues are unremarkable.
 
951122:	BMC 1017, NAVHOSP Great Lakes, IL:  “Pt has hx of chronic knee pain 2ot prior hx of bil subluxing pateller.  Pt has shown no improvement [with] pt/(indecipherable) due to nature of (indecipherable).  Plan ELMS.”

951124:	Applicant notified of intended recommendation to the general court-martial convening authority (GCMCA) for discharge with a Entry Level Separation or the least favorable characterization of service as General by reason of defective enlistment and induction due to erroneous enlistment as evidenced by chronic knee pain.  Receipt acknowledged.

951124:  	Applicant advised of her rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.  Receipt acknowledged.

951127:	Commanding Officer, Recruit Training Command, Great Lakes, IL (GCMCA) approved the applicant’s discharge with an Entry Level Separation by reason of defective enlistment and induction into the naval service due to erroneous enlistment into the naval service as evidenced by chronic knee pain.  Commanding officer’s verbatim comments:  This recruit has effected an erroneous enlistment.  Member disclosed pre-service medical history to the Branch Medical Clinic 1017 staff.  I authorize separation from the naval service with an Entry Level Separation.

951130:	Discharged with UNCHARACTERIZED (Entry Level Separation)/FAILED MEDICAL/PHYSICAL PROCUREMENT STANDARDS, authority:  NAVMILPERSMAN, Article 3620280.

RECORDER’S NOTE:

1  The source for all entries is the service record (includes medical/dental record) unless otherwise noted.

 PART IV - EXTRACT OF PERTINENT REGULATION/LAW

A.  Naval Military Personnel Manual, (NAVPERS 15560A, Change 9, effective 22 Jul 94 until 02 Oct 96), Article 3620280, SEPARATION OF ENLISTED PERSONNEL BY REASON OF DEFECTIVE ENLISTMENT AND INDUCTIONS – ERRONEOUS ENLISTMENT, states:

1.  A member may be separated on the basis of erroneous enlistment, reenlistment, induction, or extension of enlistment when:

a.  it would not have occurred if the relevant facts had been known by the Navy Department or had appropriate directives been followed;

b.  it was not the result of fraudulent conduct on the part of the member; and

c.  the defect is unchanged in any material respect.

2.   The member may be separated under this article on the basis of alcohol and/or drug dependency provided the member was diagnosed as alcohol and/or drug dependent within the first 180 days of initial entry on active duty (IEAD).  The diagnosis must have been completed by a physician or clinical psychologist.  The diagnosis itself may exceed the 180 day limit if based upon an incident committed within the 180 day period.  If the member has misconduct in the record which meets criteria for processing, he or she must be dual or multiple processed.

3.  A member may be separated under this article on the basis of not meeting physical standards for enlistment as set forth in NAVMAED P-117, Manual of the Medical Department (MANMED), provided that:

a.  The member did not meet the minimum physical standards for enlistment or induction upon entry, but the problem was revealed or discovered during in-processing at Recruit Training Commands and/or at the Naval Training Centers.  While a Medical Board is not required, the condition will be verified and documented by a medical officer and the member may be separated with an Uncharacterized Entry Level Separation.  If there is any question as to whether the condition actually existed prior to entry or whether the condition was aggravated at any time after the member was enlisted or inducted, a Medical Board will be convened.

b.  The member has no unfitting physical disability as defined in SECNAVINST 1850.4, Disability Evaluation Manual, incurred in, or aggravated by, active military service, either for the current period or any prior period of service.

c.  The medical officer evaluation or Medical Board, if convened, finds the member's present condition to be "not physically qualified" under the physical standards for enlistment or induction as opposed to physical unfitness by reason of physical disability.

d.  The Convening Authority of the Medical Board concurs with the Board's findings and recommendation.

e.  There is no disciplinary action pending.

f.  The member has not been granted a "waiver" of the physical standards for enlistment.  If a waiver was granted for the defect for which the member is now considered to be not physically qualified and the member has served less than 6 months of active duty, the Medical Board report must be submitted for departmental review to Chief of Naval Personnel (CHNAVPERS) (Pers-254).  If the member has served on active duty for 6 months or more, the member’s case must be processed under provisions of SECNAVINST 1850.4.

g.  The member has been afforded the opportunity to submit a statement for consideration by the Convening Authority of the Medical Board.  The right to make a statement shall not entitle a member to a hearing before a Physical Evaluation Board (PEB).  If the Convening Authority of the Medical Board declines to approve the Board's report and considers that appearance before a PEB is indicated, the report shall be forwarded, with an endorsement via Chief, Bureau of Medicine and Surgery (Code 25) to CHNAVPERS (Pers-254), for action.

4.  When an erroneous enlistment is detected immediately after the swearing-in ceremony at the Military Entrance Processing Station (MEPS), the following action will be taken.

a.  The MEPS commander will revoke any travel order issued assigning the individual to recruit training or other assigned command, and will issue an order assigning the individual to the sponsoring Navy recruiting district for appropriate Entry Level Separation (ELS) discharge processing, or an order of release from the custody and control of the service.

b.  The sponsoring Navy recruiting district will notify the individual of erroneous enlistment and order the individual home awaiting disposition.  The sponsoring Navy recruiting district will effect coordination with the servicing Personnel Support Activity Detachment (PERSUPPDET) to determine pay entitlement.

c.  Within 24 hours the commanding officer with special court-martial convening authority (SPCMCA) of the Navy recruiting district will follow the procedures outlined in paragraph 5 of this article and separate the individual through Entry Level Separation (ELS), discharge, or release from custody and control as appropriate.

5.  Characterization of service shall be Honorable, unless an Entry Level Separation, or void (an order of release from the custody and control of the military services) enlistment is required (see Article 3610300.5b).

6.  Procedures

a.  The Notification Procedure (Article 3640200) shall be used.

b.  If after discovering that a member's enlistment may be erroneous, and the officer exercising SPCMCA recommends that the member be retained in the naval service, initiation of separation processing is not required when the defect is no longer present; or the defect, other than a medical condition, may be waived and a waiver obtained from CHNAVPERS.

c.  If the member does not object to the separation, officers with SPCMCA (see Article 3610220) are delegated authority to separate those members.  If the member objects to the separation, the completed case must be referred to CHNAVPERS (Pers-254) as appropriate, for final determination.  Assign Separation Program Designator (SPD) codes according to BUPERSINST 1900.8.  If the separation involves an inactive duty naval reservist who received a reenlistment bonus, then CHNAVPERS (Pers-913) is Separation Authority.

d.  Forward all completed cases by letter of transmittal to CHNAVPERS (Pers-254 or Pers-913) for review and/or final determination.

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, STANDARDS FOR DISCHARGE REVIEW, states, in part:

“9.2 Propriety of the Discharge

a.  A discharge shall be deemed to be proper unless, in the course of discharge review, it is determined that: 

(1) There exists an error of fact, law, procedure, or discretion associated with the discharge at the time of issuance; and that the rights of the applicant were prejudiced thereby (such error shall constitute prejudicial error if there is substantial doubt that the discharge would have remained the same if the error had not been made); or

(2) A change in policy by the military service of which the applicant was a member, made expressly retroactive to the type of discharge under consideration, requires a change in the discharge.

b.  When a record associated with the discharge at the time of issuance involves a matter in which the primary responsibility for corrective action rests with another organization (for example, another Board, agency, or court), the NDRB will recognize an error only to the extent that the error has been corrected by the organization with primary responsibility for correcting the record.

c.  The primary function of the NDRB is to exercise its discretion on issues of equity by reviewing the individual merits of each application on a case-by-case basis.  Prior decisions in which the NDRB exercised its discretion to change a discharge based on issues of equity (including the factors cited in such decisions or the weight given to factors in such decisions) do not bind the NDRB in its review of subsequent cases because no two cases present the same issues of equity.

d.  The following applies to applicants who received less than fully honorable administrative discharges because of their civilian misconduct while in an inactive duty status in a reserve component and who were discharged or had their discharge reviewed on or after April 20, 1971:  the NDRB shall either recharacterize the discharge to Honorable without any additional proceedings or additional proceedings shall be conducted in accordance with the Court’s Order of December 3, 1981, in Wood v. Secretary of Defense to determine whether proper grounds exist for the issuance of a less than honorable discharge, taking into account that:

(1) An other than honorable (formerly undesirable) discharge for an inactive duty reservist can only be based upon civilian misconduct found to have affected directly the performance of military duties;

(2) A general discharge for an inactive duty reservist can only be based upon civilian misconduct found to have had an adverse impact on the overall effectiveness of the military, including military morale and efficiency.”

C.  SECNAVINST 5420.174C, enclosure (1), Manual for Discharge Review 1984, Chapter 9, Standards for Discharge Review, paragraph 9.3, Equity of the Discharge, states, in part, that a discharge shall be deemed to be equitable unless in the course of a discharge review, it is determined that relief is warranted based upon consideration of the applicant's service record and other evidence presented to the NDRB viewed in conjunction with the factors listed in this paragraph and the regulations under which the applicant was discharged, even though the discharge was determined to have been otherwise equitable and proper at the time of issuance.  Areas of consideration include, but are not limited to:

1.  Quality of service, as evidenced by factors such as:

a.  service history, including date of enlistment, period of enlistment, highest rank achieved, conduct and proficiency ratings (numerical and narrative);

b.  awards and decorations;

c.  letters of commendation or reprimand;

d.  combat service;

e.  wounds received in action;

f.  records of promotions and demotions;

g.  level of responsibility at which the applicant served;

h.  other acts of merit that may not have resulted in formal recognitions through an award or commendation;

i.  length of service during the service period that is the subject of the discharge review;

j.  prior military service and type of discharge received or outstanding post-service conduct to the extent that such matters provide a basis for a more thorough understanding of the performance of the applicant during the period of service which is the subject of the discharge review;

k.  convictions by court-martial;

l.  records of nonjudicial punishment;

m.  convictions by civil authorities while a member of the service, reflected in the discharge proceedings or otherwise noted in the service records;

n.  records of periods of unauthorized absence;

o.  records relating to a discharge in lieu of court-martial.

2.  Capability to serve, as evidenced by factors such as:

a.  Total capabilities.  This includes an evaluation of matters such as age, educational level, and aptitude scores.  Consideration may also be given as to whether the individual met normal military standards of acceptability for military service and similar indicators of an individual's ability to serve satisfactorily, as well as ability to adjust to military service.

b.  Family and personal problems.  This includes matters in extenuation or mitigation of the reason for discharge that may have affected the applicant's ability to serve satisfactorily.

c.  Arbitrary or capricious actions.  This includes actions by individuals in authority which constitute a clear abuse of such authority and that, although not amounting to prejudicial error, may have contributed to the decision to discharge the individual or unduly influence the characterization of service.

d.  Discrimination.  This includes unauthorized acts as documented by records or other evidence.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW, states, in part:

“2.5 Authority for Review of Naval Discharges; Jurisdictional Limitations

a.	The Board shall have no authority to:

(1)	review a discharge or dismissal resulting from a general court-martial;

(2) alter the judgement of a court-martial, except that the discharge or dismissal awarded may be changed for purposes of clemency;

(3)	revoke any discharge or dismissal;

(4) reinstate a person in the Naval Service;

(5) recall a former member to active duty;

(6) change a reenlistment code;

(7) make recommendations for reenlistment to permit entry in the naval service or any other branch of the Armed Forces;

(8) cancel or void enlistment contracts; or

(9) change the reason for discharge from or to a physical disability.

b.  Review of naval discharge shall not be undertaken in instances where the elapsed time between the date of discharge and the date of receipt of application for review exceeds fifteen years.”

E.  Naval Military Personnel Manual, (NAVPERS 15560C, Change 9, effective 22 Jul 94 until 2 Oct 96), Article 3630900, SEPARATION IN THE BEST INTEREST OF THE SERVICE, states:

1.  Regardless of any limitation on separations published in this Manual, the Secretary of the Navy may direct the separation of any member prior to the expiration of a term of service.  In those cases where no other reason for separation set forth in this Manual is appropriate, but where separation of a member is considered to be in the best interest of the service, separation processing may be initiated in the best interest of the service.

2.  Characterization.  Honorable or General by guidance provided in Article 3610300, except when an Entry Level Separation is appropriate.

3.	Procedures

a.	The Notification procedure (Article 3640200) shall be used.  In addition the notice shall:

(1)	explain why separation of the member is in the best interest of the service; and

(2)	state that no other reason for separation in this Manual is considered appropriate and why.

b.  When separation is by reason of best interest of the service, the right of a member with 6 or more years of total active and reserve naval service to request an Administrative Board is not applicable.

c.  Forward processed case by letter of transmittal to Chief of Naval Personnel (Pers-83).  Ensure member’s full name, rate, and SSN have been indicated on each page of the case.

F. Naval Military Personnel Manual, (NAVPERS 15560C, Change 9, effective 22 Jul 94 until 2 Oct 96), Article 3610200, DEFINITIONS CONCERNING SEPARATION OF ENLISTED PERSONNEL, states:

j.  Entry Level Status.  Upon enlistment, a member qualifies for entry level status during (1) the first 180 days of continuous active military service or (2) the first 180 days of continuous active service after a break of more than 92 days of active service.  A member of a reserve component who is not on active duty or who is serving under a call or order to active duty for 180 days or less begins entry level status upon enlistment in a reserve component.  Entry level status for such a member of a reserve component terminates as follows:  (a) 180 days after beginning training if the member is ordered to active duty for training for one continuous period of 180 days or more; or (b) 90 days after the beginning of the second period of active duty for training under a program that splits the training into two or more separate periods of active duty.  For the purposes of this paragraph, the date member is notified of administrative separation processing is considered the ending date for determining Entry Level Status.

PART V - RATIONALE FOR DECISION

Discussion

	After a thorough review of the records, supporting documents1, facts, and circumstances unique to this case, the Board determined that the reason for separation was improper while the characterization of the applicant’s service was equitable.  The discharge shall be changed to: UNCHARACTERIZED (Entry Level Separation)/SECRETARIAL AUTHORITY, authority:  NAVMILPERSMAN, Article 3630900.

	The applicant was separated on 951130 with an Uncharacterized discharge (A, Part IV).  On 941019, the applicant was found to be physically qualified for enlistment in the U.S. Navy even though she had previously disclosed her bilateral knee surgery when she was 12 and 13 years old.  On 951106 (31 days after staring Recruit Training), she was seen in the BMC for chronic, bilateral knee pain which had been persisting for one week.  On 951122, the applicant was recommended for an entry level medical separation.  On 951124, she was informed of her commanding officer’s (CO’s) intention to recommend her for an Uncharacterized administrative separation (ADSEP) for defective enlistment and induction due to erroneous enlistment as evidenced by her chronic knee pain.  The applicant chose not to consult with legal counsel prior to waiving all her rights except the right to obtain copies of the supporting documentation being forwarded to the GCMCA in support of her ADSEP.  On 951127, the CO, Recruit Training Command, Great Lakes, IL (GCMCA) approved and directed the applicant’s UNCHARACTERIZED (Entry Level Separation)/FAILED MEDICAL/PHYSICAL PROCUREMENT STANDARDS.  The Board found the applicant’s discharge to be improper but equitable (B and C, Part IV).

	The Board found that on 941019, the applicant informed the MEPS doctor that she had previously had surgery on both knees when she was 12 and 13 years old.  She was originally evaluated as not qualified for enlistment.  However, an orthopedic consult sheet indicated that she had recovered from surgery and had no limitations placed upon her as a result of her knees.  Subsequently, the applicant was found qualified for enlistment.  The Board finds this tantamount to granting a waiver for her enlistment.  As such, on 951106, when the applicant reported to medical that she was having problems with her knees, she was entitled to a Medical Board which was to be submitted to the Bureau of Medicine and the Bureau of Naval Personnel for departmental review prior to any separation proceedings (A, Part IV).  A review of records at the Physical Evaluation Board indicates that no Medical Board on this applicant was ever submitted for review.  Therefore, the Board finds the applicant’s discharge to be improper.  Since the Board has no authority to change the applicant’s discharge to a physical disability or to recall her to active duty (D, Part IV), the Board directs that the reason for her discharge be changed to SECRETARIAL AUTHORITY (E, Part IV). 

In the applicant’s issues 1 and 2, she refers to information contained in letters to her congressman dated 970719 and to the Board dated 970825.  In these letters, her father writes about his daughter’s “. . . training officers – [who] began exploiting this as an apparent weakness and commenced tormenting her while making an example of her to discredit her in the eyes of her fellow recruits. . . . the training officers lectured her while ridiculing her before the other recruits for hours - plus she was made to ride a stationary bicycle until in exhaustion she fell off the seat, then she was made to crawl on hands – and – knees until her knees were raw – following which the officer in-charge remarked now we’ll see what the doctor thinks about your knees. . . . during the course of the day she was de-briefed so-to-speak, by a number of officers making threat of different kinds to degrade her every was possible.  She was forced by threats made to sign papers-of-separation . . . when our daughter walked off the unloading runway – my wife and I couldn’t believe our eyes, A_ actually looked like a frightened animal – she was allowed to wear home a pair of sneakers with socks – under shorts – tee shirt – a pair of baggy sweat pants and (in 16o temp.) when she left G.N.T.C.  She was also allowed to wear home an unlined rain-coat.  All other govt. issued clothing which she had to pay for – she was required to surrender.”  The Board found nothing in the records, nor did the applicant provide anything to indicate or to show that any of the above incidents occurred.  Therefore, the Board finds no basis for relief in either issue.

	Finally, the applicant requests that the reason for her discharge be changed to “HONORABLE DISCHARGE WITH FULL BENEFITS”.  The Board interprets this issue to be a request for the applicant’s veteran’s benefits.  The Board reminds that applicant that she only completed 45 days on active duty and to be considered a veteran, she needed to complete more that 180 days on continuous active duty (F, Part IV).  While the Board finds no basis for changing the reason for the applicant’s discharge, it reminds the applicant that the Department of Veterans Affairs is a separate entity that makes its own decisions relative to eligibility, usually on a case by case basis.

Recorder’s Note:

1  In addition to the service record, the following additional documentation, submitted by the applicant, was considered:

Copy of Applicant’s DD Form 214
Copy of Applicant’s Father’s Letter to Congressman B_ S_ dtd 960719 (7 pages)
Copy of Applicant’s Father’s Letter to the Board dtd 970825 (2 pages).

PART VI - INFORMATION FOR THE APPLICANT

Decision

	The NDRB discerned an impropriety in the reason for the applicant’s discharge but no inequity in the characterization of her service.  The Board’s vote was unanimous that the reason be changed and that the character of the discharge shall not be changed.  The discharge shall be changed to: UNCHARACTERIZED (Entry Level Separation)/ SECRETARIAL AUTHORITY, authority:  NAVMILPERSMAN, Article 3630900.  The DD Form 214 should be corrected and reissued, as appropriate.

If you believe that the decision in your case is unclear, not responsive to the issues that you raised, or does not otherwise comport with the decisional documents requirements of DoD Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive.  You should read Enclosure (5) of the Directive 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 obtain a copy of DoD Directive 1332.28 by writing to:

		DA Military Review Boards Agency
		Management Information and Support Directorate
		Armed Forces Reading Room
		Washington, D.C. 20310-1809.

The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		Building 36 Washington Navy Yard
		901 M Street, SE
		Washington, D.C. 20374-5023.