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

ex-ADAN, USN 
Docket No. ND04-00656

Applicant’s Request

The application for discharge review, received 20040309, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a documentary record review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20041015.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain:  UNCHARACTERIZED/FRAUDULENT ENTRY INTO MILITARY SERVICE, authority: NAVMILPERSMAN, Article 1910-134 (formerly 3630100).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “Joining the Naval Reserve in Janury 2001 was an accomplishment which I enjoyed and liked very much. The fact that I was a part of a family who was being molded to become the very best out of all the military branches made me feel strong and characteristicly special. I learned about customs, history and formalities about the Navy and not so long it took me to want to be a full-time sailor.

I petitioned my release from the reserve forces and soon I had green light to join for active duty. I was so excited and so my family. I could see my future becoming bright and full of training and knowledge, I could see myself as a member of a big family who is the best in all what they do. I joined the Navy in all because I wanted to be a part of an organization which is highly disciplined and commited in everything, and that was what I wanted and needed.

The time came for me to leave for basic training and despite the tough environment and life, I realized that the approach of teaching recruits is basically for them to pay super attention to detail and follow instructions and orders to get them ready for future critical job assigments, sailors would be ready to follow commands without questioning.
Everything was going fine with my training until my unkles started hurting while I was marching. After a couple of weeks of being on light-duty, a bone scan was done on my legs and with findings of chronological unkle pain.
It is true that sometimes I had normal unkle pain in the past when I would go hiking or walking heavy distances and I find it to be normal tireness pain.

I was discharged with a “fraudalent enlistment and unable to re-enlist”. It was said that I never told anyone about my pre-existing medical issues, which I had none besides my unkle pain, which I find that to be normal under heavy excercices. I always had above average PT scores and perfect health.
I am submiting the copies that I signed stating that I never knew about my pain and also in those copies says that I would be able to re-enlist again.
I am disapointed about the decision of my discharge and the code of re-enlistment that I was given. I wanted to be a Navy career man and I do not find it fair that I was discharged under my circumstances. I am fighting to have a fair discharge and to be able to re-enlist in the future. My passion for the Navy is so big that I am even taking nonresident courses even after I was discharged. I am attaching proof of “requirements for 2nd and 3rd class PO” which I completed a few months after my discharge. I like to be on top of naval matters and studies.

My petition for you is as follows:

1) Re-instate me to reserve status, or
2) Change my discharge to Honorable or alike and to be able to re-enlist, or
3) Grant me VA preference or benefits, or
4) A combination of any of the above

Most definitely I would like my discharge to be Honorable since I NEVER tried to lie to the Navy and I think is wrong that I was given basically a “liar” discharge and with no change to join the service again. How would any employer who sees my discharge papers feel about me? I am a person of honor and I think I do not deserve the conditions of the discharge that I was given

I want to serve the country and to be able to be a Navy Career Man, eventually an officer and a good leader. I want to be able to support the troops and support each other as a great naval family. Let me continue in my journey, Council, let me serve you and serve the United States and support our President for a bigger and nicer tomorrow. I will do good things for the navy, I guarantee you.”

Documentation

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

Copy of DD Form 214
Copy of Separation Orders
Copy of Commanding Officer’s Recommendation
Certificate of Completion
Copies of Medical Documents (3 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR-R		030121 – 030612	HON (enlisted active duty)
	Active:   USN 			None

Period of Service Under Review:

Date of Enlistment:  030613		Date of Discharge:  030718

Length of Service (years, months, days):

	Active:    00  01  06
	Inactive:  None

Age at Entry:  25			Years Contracted:  4 

Education Level:  12			AFQT:  36

Highest Rate:  ADAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA*		Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  None

*No Marks Assigned

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNCHARACTERIZED/FRAUDULENT ENTRY INTO MILITARY SERVICE, authority:  NAVMILPERSMAN, Article 1910-134 (formerly 3630100).

Chronological Listing of Significant Service Events:

001213:	Report of Medical Examination upon entry:  Applicant failed to disclose existing medical conditions.

030709:	Medical evaluation by Sports Medicine and Rehabilitative Therapy Team, at the USS Tranquillity Clinic, Great Lakes, IL with the following diagnosis: Chronic Bilateral Ankle Pain.  Applicant testified that the medical condition existed prior to enlistment in the United States Navy.  This condition was not revealed at entrance Physical Examination.

030711:	Applicant notified of intended recommendation for discharge with a least favorable characterization of general (under honorable conditions) discharge by reason of defective enlistment and induction due to erroneous enlistment as evidenced by chronic ankle pain and defective enlistment and induction due to fraudulent enlistment as evidenced by failure to disclose pre-service medical condition.

030711:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

030714:	Commanding Officer recommended discharge with an uncharacterized service by reason of defective enlistment and induction due to erroneous enlistment as evidenced by chronic ankle pain and defective enlistment and induction due to fraudulent enlistment as evidenced by failure to disclose pre-service medical condition.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030718 with an uncharacterized service by reason of defective enlistment and induction due to fraudulent entry (A).  The Board presumed regularity in the conduct of governmental affairs (B).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

Issue 1:  Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity is evident during the Applicant’s enlistment.  The Applicant contends he had no prior knowledge of his disqualifying medical condition.  The documentation and statements provided by the Applicant did not refute the presumption of regularity in this case.  The record contains sufficient evidence to conclude that the Applicant was aware of some condition with his ankles that caused him pain while engaging in moderate physical activity.  Likewise, the record contains evidence that the Applicant failed to disclose this condition on any of his enlistment documentation or questionnaires.  The evidence of record supports the Narrative Reason for Separation for which the Applicant was processed.  No other Narrative Reason for Separation more clearly describes why the applicant was discharged.  To change the Narrative Reason for Separation would be inappropriate.  Relief based on this issue is not warranted.

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reentry into the Naval service or any other of the Armed Forces.  The NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy or Marine Corps.  Reenlistment policy of the Naval service is promulgated by the Commander, Navy Recruiting Command, 5722 Integrity Drive, Bldg 784, Millington, TN 38054 .  Neither a less than fully honorable discharge nor an unfavorable "RE" code is, in itself, a bar to reenlistment.  A request for a waiver is normally done only during the processing of a formal application for enlistment through a recruiter.  

The Applicant should be aware that, with respect to nonservice-related administrative matters, i.e., VA benefits, educational pursuits, and especially civilian employment, an uncharacterized separation is considered the equivalent of an honorable or general (under honorable conditions) discharge.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 02 until Present, Article 1910-134 (previously 3630100), Separation by Reason of Defective Enlistments and Inductions – Fraudulent Entry Into the Naval Service.

B.  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.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

PART IV - INFORMATION FOR THE APPLICANT

If you believe that 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 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 view DoD Directive 1332.28 and other Decisional Documents by going online at "afls14.jag.af.mil".

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
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023