ex-AN, USN
ND06-01065

Current Discharge and Applicant’s Request:

Application Received:  				20060814
Reason for Discharge:		           		 - 										FRAUDULENT ENLISTMENT
Character of Service:				
Discharge Authority:				MILPERSMAN 1910-134
Last Duty Assignment/Command at Discharge:	RECRUIT TRAINING COMMAND GREAT LAKES IL

Applicant’s Request:
	Narrative Reason change to:		eNTRY LEVEL SEPARATION
	Characterization change to:		
	Review Requested:			
	Representation:  				
	Issues (as summarized by NDRB):		1.  RE Code from RE-4 to RE-1, desire to re-enlist
						2.  SPD code change to JDM
						3.  Reason for discharge did not exist; medical condition no longer exists

Decision:

Date of Decision:					20070712
Location of Board:				Washington D.C.
Complete Service Record:				
Complete Medical Record:			
Complete Discharge Package:			

Regarding propriety, the Board found the discharge:	
Regarding equity, the Board found the discharge:	

By a vote of  the Characterization shall  .	
By a vote of  the Reason for Discharge shall   -									ERRONEOUS ENLISTMENT.

Summary of Service:

Prior Service:
Inactive: USNR (DEP)				20040714 - 20050629 
Active:   NONE
Period of Service Under Review:
Date of Enlistment:  				20050630
Years Contracted:  				;        
Date of Discharge:				20050812
Length of Service:				00  Yrs  01  Mos  13  Days (does not exclude lost time, if any)
Time Lost During This Period:			
Days Unauthorized Absence:			     
Days Confinement:				     

Education Level:  				*
Age at this Enlistment:  				
AFQT:  						50
Highest Rate/Rank:				AN

Performance Evaluation Averages:			NOT APPLICABLE

Awards and Decorations (as listed on the DD Form 214):  NONE**

*Applicant entered DEP while in High School; whether or not graduated not found in service record.
**Service record indicates award of National Defense Service Medal.

Service Record Entries Related to Characterization of Service or Narrative Reason for Separation

20050728:	Counseled on BUMED waiver.  Does not want waiver.  Will not support local waiver.

Medical Record Entries Related to Characterization of Service or Narrative Reason for Separation

20040714:	Applicant checks “no” box on MEPS enlistment physical DD Form 2807-1in response to questions 10 “Have you ever had or do you now have…’ d, “asthma or any breathing problems related to exercise, weather, pollens, etc.,” and h, “been proscribed or used an inhaler.”

20050721:	Emergency Medical Services Report, US Naval Hospital, Great Lakes.  Applicant complains of tight chest at pool.  Denies history of asthma, provider note “asthma questionable, pt not sure.”

Not dated:	Follow up medical evaluation, Branch Medical Clinic.  Chief complaint:  Asthma.
	Assessment:  ? possible asthma.
	Plan:  Continue current medication, albuterol, LD for 30 days.  Follow up after referral to asthma clinic.

20050721:	Respiratory Clinic questionnaire.  Applicant acknowledged being treated for asthma at age 10 with inhaler.
	A/P:  Mild persistent asthma.

20050728:	Follow up medical evaluation, Branch Medical Clinic, Great Lakes, IL.
	Entry Level Medical Separation for EPTE condition.
	Diagnosis: Asthma, persistent, mild.  Condition is not correctable to meet Navy standards.

Elements of Discharge:  [INVOLUNTARY]

Date Notified:					20050804
Reason for Discharge				DEFECTIVE ENLISTMENT AND INDUCTION –
	
						 - 
	FRAUDULENT ENLISTMENT
Least Favorable Characterization:			

Date Applicant Responded to Notification:		20050804
Rights Elected at Notification:
Consult with Counsel			
Administrative Board			
Obtain Copies	  			
Submit Statement(s) (date)			       
GCMCA Review				

Administrative Board Date:			     
Recommendation of Commanding Officer (date):	
Separation Authority (date):			CO, RECRUIT TRAINING COMMAND (20050803)
	Reason directed:				 - 
							FRAUDULENT ENLISTMENT
	Characterization directed:			 
Date Applicant Discharged:			20050812

Additional Information Considered by Board

Type of documentation submitted by the Applicant and considered by the Board
       
       	Document Type					#Pages
       Related to Period of Service Under Review:
	Service/Medical Record:				23
	Other:						07
       Related to Post-Service Period:
	Community Service:				  0
	Education:					  0
	Employment:					  0
	Health/Medical:					  0
	Character Statements:				 
	Criminal Records Checks:				  0
	Additional Statements from Applicant:		  0
        Other Documentation	 (Describe Below)		02

        Total Number of Pages:				32

       Description of Other Documentation:  Ltr from SFC C_ R_ N_       	     

Discussion

Issue 1:   either  which the Board cannot form the basis of relief for the Applicant, or  the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum regarding .  

Decisional Issues:

Issue 2 ().  The Separation Code JDA accurately reflected the discharge Applicant received.  The request to change the Code to JDM is rendered moot by the Board’s decision to change the reason for discharge to erroneous enlistment, for reasons indicated below.  The requested relief is partially granted to the extent that the Code is changed to reflect erroneous entry (no board) as the reason for discharge.

Issue 3 ().  The Applicant contends that he did not knowingly provide false information about his asthma history during his MEPS pre-enlistment medical examination, and further appears to contend that he did not have asthma but that his chest pain/respiratory issues were the result of a severe stomach causing a reflux condition.  The Board determined that the Applicant’s contention that he did not knowingly make false statements regarding his condition was credibly and sufficiently supported by the evidence he submitted with his petition.  However, the Board did not determine that competent medical authority’s presumptively correct diagnosis of asthma was improper or inequitable.  Therefore, the Board determined that the most appropriate reason for discharge was erroneous enlistment rather than fraudulent enlistment.  Relief is granted in part on this issue.  

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Service Record Entries, Medical Record Entries, Elements of Discharge and evidence submitted by the Applicant, the Board found the Applicant’s discharge improper due to an error of fact regarding his pre-service statement of medical history.

Minority Opinion

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 3 May 2005 until Present, 
Article 1910-134, SEPARATION BY REASON OF DEFECTIVE ENLISTMENTS AND INDUCTIONS - FRAUDULENT ENTRY INTO THE NAVAL SERVICE.

B.  A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 20 June 2005 until Present, Article 1910-130, SEPARATION BY REASON OF DEFECTIVE ENLISTMENTS AND INDUCTIONS - ERRONEOUS ENLISTMENT.

C.  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.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  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:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the 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 additional evidence related to this discharge.  Representation at a personal appearance hearing is recommended but not required.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  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 Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’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 Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board 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 subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, 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 “PTSD.”  Only the Board for Correction of Naval Records can grant this type of narrative reason change.  

Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge 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.  Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  

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 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.  

Board Membership:  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