ex-SR, USN

Current Discharge and Applicant’s Request

Application Received: 20090227
Characterization of Service Received:  
Narrative Reason for Discharge: 
Authority for Discharge:  MILPERSMAN  ()

Applicant’s Request:  Characterization change to:  
		       Narrative Reason change to:  

Summary of Service

Prior Service:
Inactive:	USNR (DEP) 20080129 - 20080624		Active:	

Period of Service Under Review:
Date of Enlistment:  20080625	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20080829	Highest Rank/Rate:  SR
Length of Service:   Year(s)     Month(s)   05 Day(s)
Education Level:  	AFQT:  49
Evaluation Marks:	Performance:  NFIR	Behavior:  NFIR	OTA:  NFIR

Awards and Decorations (per DD 214):	NONE

Periods of UA/CONF:            NJP:            SCM:            SPCM:           CC:  

Retention Warning Counseling:  

          -20080802:  Not eligible for reenlistment due to: ASMO Code 307.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

	 Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized “NDSM”

The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate.

Types of Documents Submitted/reviewed

Related to Military Service:	
                                         DD 214:  	 Service/Medical Record:  		  Other Records:  

Related to Post-Service Period:	
	Employment:			Finances:			Education/Training:	
	Health/Medical Records:		Substance Abuse:			Criminal Records:	
	Family/Personal Status:		Community Service:		References:		
              Additional Statements:
                             From Applicant:  	From Representation:         	From Congress member:    

                    Other Documentation:  

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

Applicant’s Issues

1.  She did not hide a pre-existing knee condition.
2.  Navy misdiagnosed her knee problem.
Decision

Date:  20090604	       Location:  Washington D.C.	Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  FRAUDULENT ENLISTMENT.

Discussion

:  ()  .  The Applicant contends she did not try to hide or mislead the Navy regarding the pain in her knee, and the Navy misdiagnosed her knee problem because it was due to hip problems.  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.  The Naval Hospital, Great Lakes, diagnosed the Applicant with Chronic Patellar Femoral Pain Syndrome, but after her discharge she was diagnosed by a civilian doctor and successfully treated for three bulging discs with sciatica and bursitis in her left hip.  However, the Applicant provided no documentation to prove her hip problems were the cause of her knee problems.  The Board is pleased the Applicant is improving physically, but nonetheless, it was still the Applicant’s responsibility to disclose all pertinent medical information when enlisting in the service, whether she thought it was relevant or not, to allow the Navy to make an informed decision about her enlistment.  In her DD Form 293, the Applicant admitted to having “experienced knee pain about two years before [she] entered the Navy, but the pain was different than the pain I had in boot camp.”  In both the Applicant’s Medical Prescreen of Medical History Report of 26 January 2008 and Report of Medical Examination of 29 January 2008, she marked “NO” when asked, “Have you ever had or do you have now” regarding knee problem or trouble.  Had the Applicant disclosed all her prior medical issues, the Navy would have medically evaluated her to determine if she was “Fit for duty.”  The Board determined the Applicant did not fully disclose pre-service knee problems and the narrative reason for separation was appropriate.

For the edification of the Applicant, an Uncharacterized (Entry Level Separation) discharge is initiated within the first 180 days of continuous active duty.  The Applicant only served 2 months and 5 days (34 days).  A member being processed for an Entry Level Separation may receive an Honorable characterization if it is warranted by presence of unusual circumstances involving personal conduct and performance and will be considered only for the following reasons: Selected changes in service obligation; Convenience of the Government; Disability; and Best Interest of the Service.  There is nothing in the Applicant’s record of service, nor did the Applicant provide any documentation, to demonstrate she warranted an Honorable discharge and the reason for separation does not meet any of the reasons to even consider an Honorable discharge.  Based on her time in service, lack of unusual circumstances in conduct and performance, and reason for separation, the Board determined the awarded characterization, Uncharacterized, was appropriate and an upgrade to Honorable would be inappropriate.  

After a thorough review of the available evidence, to include the Applicant’s Summary of Service,   Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found 

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 22, effective 16 May 2008 until Present, 
Article 1910-134, 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. 

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 NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the NDRB’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 NDRB 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 or is referred to a court martial 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 or for any basis wherein an Other Than Honorable Discharge is authorized, 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 other medical related reasons.  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 NDRB 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 special 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.  The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership:  The names and votes of the members of the NDRB 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