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

FOR OFFICIAL USE ONLY

   ex-AR, USN
Docket No. ND05-01165

Applicant’s Request

The application for discharge review was received on 20050706.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions).  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060131.  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 and reason for discharge shall not change.  The discharge shall remain Uncharacterized by reason of defective enlistment and induction due to fraudulent entry.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application and attached document/letter:

Issue 1:  “I was medically discharged for Spinabifida Oculta.  I came home and got my doctors to check it out and I can prove that I do not have this.  I want my code changed in order to have the option to return to the military.

Dear Board,

I am writing to you to seek help in changing my DD-214. I feel I was wronged by the United States Navy. About a year before I decided to go into the Navy I found out that I might have a slight case of scoliosis of the spine. In October 2003 I went to a specialist and received a MRI. In these results I was told that everything was normal with my spine and if I wanted to join the Navy I would be able to do so with no complications.

In September 2004 I decided to join the Navy. September 11th I signed in Denver, CO at the MEPS. I did not say anything throughout the MEPS about my MRI because I was told that nothing was wrong and everything was normal. I passed all tests at the MEPS with no problems at all.

I left from Denver, CO MEPS on October 05, 2004 for Boot Camp in Chicago, IL. I arrived at boot camp and went through the initial tests when you get there. After all of the shots that they give you I passed out before the female awareness class was to start. During that time they made me see the doctor that was there in the building. She asked me about any pass problems with passing out and I told her about one time that I passed out a few years prior but it was due to dehydration. After I spoke with her she gave me a Light Limited Duty sheet and wrote “LLD Until Cleared” which she said would be until they receive my medical documents. She also would not pass me so I could finish the
tests. I asked her why I could not receive a “pass” and she said that they were going to have to check everything out before they could let me proceed.

During the time of having the LLD “chit” I was not aloud to stand for long periods of time. Due to sitting Indian style on the cement and hard floors of the compartment I began having more and more back pains. When I went to see a doctor for being sick I also told him of the back pains I had from sitting on the floor. When he asked me about past problems with my back I told him of the MRI but I said that everything had came back normal. He then told me that he noticed in my records that we were waiting for medical documents to be delivered and he would check it out for himself. He too left me on LLD and kept me sitting on the floor. I was not allowed to participate in any activity. During the time I waited for my documents to show up which took about 3 weeks I had to watch my division be able to do everything that I knew I was able to do also. When my documents arrived I was sent to the “SMART” team upstairs in the hospital and I spoke with the bone specialist there and he ordered some x-rays to be done. After I finished getting my x-rays done, I went to speak with him and he told me that I had what was called Spinabifida Oculta. He told me that basically I had a small whole in my lower spine. He said that it will cause problems for me to go on in the Navy and with that he signed papers saying that I needed to be discharged and I could not perform my required duties.

I was kept with my division until the division was on their 4-1 day. I was then moved over to SEPS and I was there for 3 weeks while I was waiting on my orders to go home. The legal directors that I spoke with told me that if I wanted this code changed the best thing for me to do would be to go to a specialist back home and get their opinions
and have more tests done. I was also informed by not only one Petty Officer but also a Lieutenant, that the Navy tends to find simple reasons for females to get discharged because there are too many in the Navy and not enough “female jobs.”

When I arrived home I went and spoke with a doctor here in Garden City, Ks where I live and he agreed that we should get some more tests taken. He scheduled a time for more tests, about $1,875.00 dollars worth for another in-depth MRI and we had them done. It took a few days before I received the results back. When I received them it was as I expected, all the MRI and x-rays showed that I do not have any problems with my spine nor do I have Spinabifida Oculta.

Being in the Navy was something that I wanted to do with all my might and being. I know I was able to make it through boot camp, easily. Not only did I want to be in the Navy to make my family proud but I wanted a sense of accomplishment and I wanted to change my life and the road I was headed on. I feel I was dealt the raw end of this and I would like to have the option, if I choose, to return to the Navy or another branch of military service.”

Documentation

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

Applicant’s Privacy Act Release for Senator B_, dtd March 30, 2005
St. Catherine Hospital Imaging Services MRI Report dtd December 3, 2004 (3 pages)
Applicant’s administrative discharge package, including medical documentation, dtd November 17, 2004 (24 pages)
Applicant’s DD Form 214 (Member - 4 & Member - 1)
Electronic Personnel Security Questionnaire with National Agency Check Security Information dtd September 11, 2004 (16 pages)
Enlistment Guarantees dtd July 2, 2004
Information regarding the Airman (AN) rating (3 pages)
Applicant’s Enlistment contract (3 pages)
St. Catherine Hospital Imaging Services MRI Report dtd March 4, 2003 (3 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20040911 – 20041004	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20041005		Date of Discharge:  20041123

Length of Service (years, months, days):

	Active:    00  01  19
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:	None
	Confinement:			None

Age at Entry:  18 

Years Contracted:  4 

Education Level:  12				AFQT:  49

Highest Rate:  AR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NA*		Behavior:  NA*	OTA:  NA*

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal

* Not Available

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

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

Chronological Listing of Significant Service Events: 

040911:	Report of Medical History upon entry:  Applicant failed to disclose existing medical conditions/problems – recurrent back pain or any back program.

041013:	NAVHOSP Great Lakes:  18 year old female seaman recruit her for referral from Moment of Truth.  Seaman Recruit admits to chronic back pain for 2 years which she has gone to chiropractor for.  Had x-rays which show curvature of spine.  Also admitted to 2 syncopal episode for which she want to the ER in March 2004.
	Assessment/Plan:  Syncope and Low Back Pain.  Request CMR’s from chiropractor and hospital for both diagnoses.  Motrin 800mg, patient educated.  Limited light duty until cleared.

041020:	SHIP SICKCALL:  18 year old female with chief complaint of not feeling well and back pain.  History of Scoliosis.  
	Assessment:  Upper Respiratory Infection and follow-up back pain.
	Placed on limited light duty.

041101:	NAVHOSP Great Lakes:  18 year old female recruit complains of low back pain times 2 years.  
	Assessment/Plan:  Low back pain, refer to SMART for further eval and disposition.  

041101:	Memo from SMART TEAM to Recruit Division Commander, stating the medical condition of Applicant.  Recruit is ongoing medical treatment in the SMART Team and due to the nature of her diagnosis (which will remain undisclosed) the recruit should be allowed to call home to discuss her medical condition with family members/significant others.  The issues to be discussed specifically regard the possibility of an Entry Level Medical Separation (ELMS) for a medication condition that existed prior to enlistment.  It is imperative that family members are aware of this possibility prior to ELMS for an Orthopedic/Musculoskeletal condition.
	Recruit will return to clinic the following week, when a determination of status will be made.  Assure that the recruit attends Physical Therapy and all medical limitations are followed.

041105:	USS TRANQUILLITY Medical Clinic:  Recommend entry level medical separation for a condition existed prior to entry.  Diagnosis:  Spina Bifida Occulta (layman’s terms) Chronic Back Pain, Signs w/X-ray findings.  Condition is not correctable to meet navy standards and patient did not have a waiver to come into service.

041105:	SMART:  Recruit was evaluated by today by the Sports Medicine and Rehabilitative Therapy (SMART) Team, at the USS TRANQUILLITY Clinic, Great Lakes, IL, with diagnosis of back pain with spinal deformity.  Patient signed and testified that the above medical condition existed prior to her enlistment and this condition was not revealed at her entrance Physical Examination.  She also testified that this condition was not treated by a physical prior to enlistment.  She understood that she would receive an Entry Level Medical Separation for this condition, since it was a pre-existing condition.
	Patient has discussed this condition with family members, who agree with decision to pursue ELMS.

041105:	SMART:  Recruit was evaluated by today by the Sports Medicine and Rehabilitative Therapy (SMART) Team, at the USS TRANQUILLITY Clinic, Great Lakes, IL for back pain follow-up.  Pt states that her pain is currently an 8/10.
	Assessment:  Lumbar Spine with Spina Bifida Occulta.  
	Plan:  Limited Duty, Continue Physical Therapy, Follow-up in four days for re-check.

041110:	Applicant notified of intended recommendation for discharge by reason of defective enlistments and inductions – erroneous enlistment and defective enlistments and inductions – fraudulent entry into Naval Service.  Applicant notified that the least favorable characterization of service possible is general (under honorable conditions).

041110:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

041117:	Commanding Officer, Recruit Training Command, Great Lakes, IL, directed the Applicant's discharge with an uncharacterized by reason of defective enlistment due to fraudulent enlistment.  

041119:	NAVHOSP Great Lakes:  For ELMS, A/P chronic Lower Back Pain, Fit for travel.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20041123 by reason of defective enlistment and induction due to fraudulent entry (A) with a service characterization uncharacterized.  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 (B and C).

The Applicant contends that she was discharged erroneously because her diagnosis of Spina Bifida Occulta was incorrect.  The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted.  A member may be separated for defective enlistment and inductions – fraudulent entry into the Naval service for effecting a fraudulent enlistment by falsely representing or deliberately concealing any qualification or disqualification prescribed by law, regulation, or order.  The evidence of record indicates that during the enlistment process, the Applicant denied any history of recurrent or chronic back pain.  On DD Form 2807, Question 12c, the Applicant denied having “Recurrent back pain or any back problem.”  While on active duty, the Applicant encountered significant back pain that was ultimately diagnosed by Navy medical professionals as Spina Bifida Occulta.  During the course of her treatment, the Applicant revealed that she had experienced chronic back pain for two years prior to her enlistment and that she had been evaluated at a hospital for a case of suspected scoliosis.  Based upon the evidence of record, the Board was convinced that the Applicant wrongfully concealed her history of chronic back pain for the sole purpose of effecting her enlistment into the Naval service.  The Applicant's DD Form 214, Block 28, Narrative Reason for Separation, indicates she was separated by reason of defective enlistment –fraudulent entry.  No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged.  To change the Narrative Reason for Separation would be inappropriate.  Relief denied.

By regulation, members notified of intended recommendation for discharge within the first 180 days of enlistment are eligible for an uncharacterized or entry-level separation characterization of service.  Unless there were unusual circumstances regarding a servicemember’s performance or conduct that would merit an honorable characterization, an uncharacterized discharge is generally considered the most appropriate characterization of a member’s service.  The Applicant's service record did not contain any unusual circumstances during her less than two months in the military to warrant a change of discharge to honorable.  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 NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces and this issue does not serve to provide a foundation upon which the Board can grant relief.  Regulations limit the Board’s review to a determination on the propriety and equity of the 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 any additional 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.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 02 until 2 May 2005, 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 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

		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