ex-HM, USN
ND07-00673

Current Discharge and Applicant’s Request

Application Received:  20070420 		Characterization Received:  
Narrative Reason:  FRAUDULENT ENTRY INTO MILITARY SERVICE 	       Authority:  MILPERSMAN 1910-134

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: REQUESTED, BUT NOT SPECIFIED
Applicant’s Issues:	1. Pre-service life used against me
			2. Discharge not warranted by overall service record

Decision

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  FRAUDULENT ENTRY INTO MILITARY SERVICE.

Date:  20071129			Location:  Washington D.C	 Representation:  

Discussion

Issue 1 ().  The Applicant is correct that the reason for her discharge related to events occurring prior to her active duty service.  However, the essential reason the Applicant was discharged stemmed from her failure at enlistment to disclose her pre-service psychiatric care, thus preventing competent military authorities from assessing whether or not she qualified for enlistment or, if not, an enlistment waiver.  A member may be separated by reason of procurement of a fraudulent enlistment, induction, or period of service through any knowingly false representation or deliberate concealment in regard to any of the qualifications or disqualifications prescribed by law, regulation, or orders for the respective enlistment, induction, or period of service.  The record clearly indicates that the Applicant concealed during her enlistment examination her previous treatment for depression and suicidal ideation.   

Issue 2 ().  The Board did not concur that the Applicant’s discharge was not warranted by her overall service record.  Fraudulent enlistment is considered a serious offense for which a punitive discharge is authorized upon conviction at special or general court-martial.   The Board weighed whether the Applicant’s concealment might have been mitigated by the fact that she did reveal to competent medical authority her pre-service psychiatric treatment within a few months of her enlistment in 1996.  It appeared to the Board that the Applicant’s fraudulent enlistment could have been identified at that time, in which case she might have been discharged with an entry level separation or have received a waiver.  Since that did not occur and the Applicant continued to serve, the Board considered whether the Applicant’s subsequent good service until the incident which again brought her pre-service psychiatric treatment to light was sufficient to mitigate the initial fraud and warrant an honorable characterization of service.  After careful consideration, the Board concluded that it could not determine whether the initial indication in 1996 of the Applicant’s pre-service psychiatric treatment was sufficient in nature and detail to identify the possibility of a fraudulent enlistment; that the overall evidence did demonstrate that a fraudulent enlistment occured; that the evidence did not demonstrate that the Applicant was not responsible for her conduct; and that the Applicant’s satisfactory performance of duty as a Hospitalman at a shore establishment was outweighed by the negative aspects the impact her fraudulent enlistment and conduct had on the relatively small ship to which she was assigned when it came to light.  Therefore, the Board considered that the characterization of general (under honorable conditions) was appropriate.

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, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that 

Summary of Service

Prior Service:
Inactive: USNR (DEP)	19951026 - 19960513  		Active:   	      -        
Period of Service Under Review:
Date of Enlistment: 19960514	Years Contracted:  ; Extension:  14 MONTHS	Date of Discharge:  20000218
Length of Service:  03  Yrs  09  Mths  05  Dys	Lost Time:  Days UA:    Days Confined:  
Education Level:  	Age at Enlistment:  	AFQT:  44	Highest Rank/Rate:  HM
Evaluation marks (# of occasions):	Performance:  2.0(1)	Behavior:  1.0(1)	 	OTA:  1.50 
Awards and Decorations (per DD 214):  GCM, NMCAM, SSDR, Rifle EX, Shotgun EX

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

19951026:	Medical Record:  Reason for visit:  Enlistment examination.  Applicant checks “no” on SF 93, block 11, “Have you ever had or have you now depression or excessive worry,” block 16, “Have you ever been treated for a mental condition?” 
	Physician’s Summary:  Applicant’s son died when Applicant 18 y/o.  Saw a counselor through her high school (social worker) and had ≤ 3 sessions.  No H/O mental or emotional illness.
	Recommendation:  Is qualified for service in US Navy.

19960821:	Medical Record:  Reason for visit:  Referred by advisors after requesting to speak to someone about loss of 7 day old son in 1994.  History of weekly visits with psychiatrist age 15-18 due to depression from moving a lot resulting in low self esteem due to few to 0 friends and close relationships.  Reports to have taken Prozac x 1 month but stopped (reasons unclear).  Denied previous/current SI/HI.
	Diagnosis:  R/O major depression vs. Adjustment disorder with depressed mood.
	Recommendation:  Relaxation group; Coping Skills group.

19960822:	Medical Record:  Reason for visit:  Attend recommended relaxation group.
	Diagnosis:  Not currently suicidal or homicidal.
	
19960828:	Medical Record:  Reason for visit:  Referred to 5 North Mental Clinic for screening
	Diagnosis:  Axis I, Adjustment Disorder with Mixed Anxious and Depressed Mood.
	Axis II, Histrionic Personality, Moderate, Narcissistic/Dependent/Antisocial Featurees.
	Recommendation:  Return for therapy/consultation as needed; refer to Anxiety group, Coping Skills group.

19960829:	Medical Record:  Reason for visit:  Attended 1st Coping Skills group.
	Diagnosis:  As appropriate for group so far, doing much better than initial 1:1.
	Recommendation:  Continue with group next week.

19960904:	Medical Record:  Reason for visit:  Attended 2nd Coping Skills group.
	Diagnosis:  Doing well, appropriate for group.
	Recommendation:  Follow up w/regular psychologist; attend group for extra support until V.A.

19960910:	Medical Record:  Reason for visit:  Follow up psychiatry clinic
	Diagnosis:  Coping skills intact.  SI/HI risk is low.
	Recommendation:  Continue support.

19960911:	Medical Record:  Reason for visit:  Coping skills group.
	Diagnosis:  Very disruptive, appears to monopolize group, not very easily redirectable, inappropriate for group setting.
	Recommendation:  Consult for group v. 1:1; Consult w/psychologist on appropriate group setting.

19960918:	Medical Record:  Reason for visit:  Follow up psychiatry clinic.
	Diagnosis:  SI/HI risk low.
	Recommendation:  Continue support.

19960930:	Medical Record:  Reason for visit:  Follow up psychiatry clinic.
	Diagnosis:  SI/HI risk low.  Coping skills holding.
	Recommendation:  Continue support.

19961011:	Medical Record:  Reason for visit:  Follow up psychiatry clinic.     
	Diagnosis:  Coping skills improving.  SI/HI risk low.  
	Recommendation:  Continue support, group and individual.

20000123:	Medical Record:  Reason for visit:  Emergency room due to suicidal ideation stemming from argument w/spouse, wanted to take bag of Tylenol, called 911.  Denied SI/HI, contracted for safety, ship scheduled for 4-day deployment in am.  Prior psych—depression treated with Prozac before Navy.
	Diagnosis:  Mild depression vs adjustment disorder.
	Recommendation:  Psychology consult.

20000124:	Medical Record:  Reason for visit:  Psychological testing.
	Diagnosis:  Not currently suicidal.  History of feeling depressed, stressed, on-going marital problems.
	Recommendation:  Consult appointment 20000126.

20000126:	Medical Record:  Reason for visit:  Psychology consult.  Prior psych history age 15-16, treated for depression.
	Diagnosis:  Axis I, R/O Mood Disorder; Partner Relational Problems
	Axis II, Dependent Personality Traits
	Recommendation:  Consult to Jacksonville Mental Health for evaluation; F/U appt; marriage counseling.

Not dated:	Medical Record:  Reason for visit:  Psychology consult.  History since age of 15 of mood swings lasting one week, depressive in nature, frequently with depressed mood, irritability, decreased sleep, decreased energy, decreased appetite, poor concentration, crying spells, and occasional periods of suicidal ideation.  Recalled attempting to cut wrist with scissors at age 14, cutting skin but not requiring sutures.  No suicidal ideation between 14 and past month…treated for one month with Prozac at age 15…discontinued medication after running away from home and returning one week later.
	Diagnosis:  Depressive Disorder, Not Otherwise Specified, not disabling for full duty, EPTE; Personality Disorder, Not Otherwise Specified with borderline and dependent features, ETPE.
	Recommendation:  Full duty, psychiatrically fit; fully responsible for actions; full labs ordered; Co-dependency Anonymous group; follow up 20000209 and 20000210

20000209:	Medical Record:  Reason for visit:  Follow up psychology clinic.  
	Diagnosis:  Patient improved.
	Recommendation:  Continue Prozac; expecting discharge by 11 or 14 Feb; seek help if SI/HI after military.

20000214:	Medical Record:  Reason for visit:  Follow up psychology clinic, reports feeling better since starting Prozac.
	Diagnosis:  Axis I: Depressive Disorder NOS; Partner Relational Problems
	Recommendation:  Follow up as needed before discharge.

Discharge Process

Date Notified:					20000217
Reason for Discharge:	 - 
Least Favorable Characterization:	

Date Applicant Responded to Notification:		20000217
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			 
	Administrative Board			
	GCMCA review				

Commanding Officer Recommendation (date):	
Separation Authority (date):	CO, USS O'BANNON (DD 987) (undated)
              Reason for discharge directed:	 - 
              Characterization directed:	
Date Applicant Discharged:	20000218

Types of Documents Submitted by Applicant and Considered By Board

Related to Military Service:	Service and/or Medical Record:  		Other Records:  

Related to Post-Service Period:  	
	Employment:  			Finances:  			Education: 		
	Health/Medical Records:  		Substance Abuse:			Criminal Records:  	
	Family/Personal Status: 		Community Service:  		References:  		
	
Additional Statements From Applicant:  	From Representative:    		Other Documentation (Describe)       

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 Dec 97 until 2 Feb 01, 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 II, Para 211, Regularity of Government Affairs, Part V, Para 502, Propriety and Para 503, Equity.

C.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 83, Fraudulent enlistment, appointment, or separation.

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 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:  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