ex-SN, USNR

Current Discharge and Applicant’s Request

Application Received: 20090304
Characterization of Service Received:    (ENTRY LEVEL SEPARATION)
Narrative Reason for Discharge:   (OTHER)
Authority for Discharge:  MILPERSMAN  FRAUDULENT ENTYR INTO MILITARY SERVICE 

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

Summary of Service

Prior Service:
Inactive:	NONE		Active:	

Period of Service Under Review:
Date of Enlistment:  20070911	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20080414	Highest Rank/Rate:  SN
Length of Service:  Inactive:  Year(s)     Month(s)   14 Day(s)  
	Active     Year(s)     Month(s)   20 Day(s)
Education Level:  	AFQT:  90
Evaluation Marks:	Performance:  NFIR	Behavior:  NFIR	OTA:  NFIR
Awards and Decorations (corrected):  NDSM

Periods of UA/CONF:  	

NJP:  	SCM:  	SPCM:  	

CC:  

Retention Warning Counseling:  

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:  

Administrative Corrections to the Applicant’s DD 214

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

	 Decorations, Medals, Badges, etc. should read: “NATIONAL DEFENSE SERVICE MEDAL”
  “FRAUDULENT ENTRY INTO MILITARY”

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

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

Applicant’s Issues

1. Applicant contents he committed no fraudulent entry – his injury occurred between his entry physical and when he reported for duty.

Decision

Date:  20090810	                                   Location:  Washington D.C.		Representation:  

By a vote of  the Characterization shall   (ENTRY LEVEL SEPARATION).
By a vote of  the Narrative Reason shall  FRAUDULENT ENTRY INTO MILITARY SERVICE.
Discussion

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and/or the reason for discharge if such change is warranted.  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 Applicant’s record of service included the Applicant’s Chronological Record of Medical Care of 31 March 2008, which noted that he was seen by the Physical Therapy Department due to back pain, he experienced this pain prior to entry [into the military], and he had an MRI and was evaluated by a neurologist.  Furthermore, the evidence of record reflects that on 1 April 2008, the Applicant underwent an entry level medical separation at the medical clinic onboard the USS TRANQUILITY for lower back pain, a condition that existed prior to entry into the service and would require 6-12 months of rehabilitation and conditioning. Per the Commanding Officer’s (Recruit Training Command) letter of 9 April 2008, the Applicant was administratively discharged due to Defective Enlistments and Inductions–Fraudulent Entry into the Naval Service—based on the medical evaluation of 1 April 2008.  The Applicant intended to argue his case to stay in the Navy but received two Red Cross messages informing him that his grandmother, who raised him and his brothers, was critically ill.  Accordingly, he waived his rights pertaining to administrative separation and returned home as noted in the Administrative Separation Processing Notification Procedure of 7 April 2008. 

: (Decisional) ()  .  In seeking a change in the narrative reason of discharge to Erroneous Entry, the Applicant contends he did not fraudulently enlist in the military by withholding his back injury.  The Applicant states his back injury occurred after his entry physical done on 11 September 2007 and before 25 March 2008, the date he reported to active duty, and that he did inform the MEPS doctor (on or about 25 March 2008) about his injury.  The evidence of record did not contain a copy of the physical of 11 September 2007 nor did the Applicant provide a copy to the Board.  However, the evidence of record does include a copy of the Record of Medical History, Enlistment Physical of 30 March 2006, wherein the Applicant checked “no” to the question, “Have you ever had or do you now have: 12.c. Recurrent back pain or any back problems?”  Since the Applicant provided no documentation of his injury that allegedly occurred between 11 September 2007 and 25 March 2008 or copies of his medical screenings of 11 September 2007 and 25 March 2008, the Board must rely on the available evidence in this case.  Per the medical records, the Applicant was diagnosed with lumbago (lower back pain) and this medical problem/condition existed prior to entering the Naval Service.  In his DD Form 293, the Applicant stated “During my training, my back became sore and I went to see the base doctor at RTC.”  “The doctor at the SMART team told me that I must be lying because it [evidence of prior back injury] was not in my file.”  In the Chronological Record of Medical Care record of 31 March 2008, the provider noted, “Pt reports pain 10/10 located low back and entire numbness to left lower extremity with weakness.”  In the Board’s view, the Applicant had more that just a “sore” back and the Commanding Officer, Recruit Training Command, determined a fraudulent enlistment had occurred and that the Applicant’s “medical condition affected his potential for performance of expected duties and responsibilities while on active duty and posed a risk if he was retained in the Naval service.”  Based on a review of the records, medical documentation previously discussed, which included evidence presented by the Applicant, the NDRB determined there was sufficient evidence to support a discharge due to fraudulent enlistment and the fact that a physician may have told him not to worry about his back problem prior to his enlistment is not a defense nor does it serve as a justification for failing to disclose information that would disqualify him for service had it been known. Additionally, the NDRB noted the Applicant’s work with the fire department, volunteer rescue squad, and sheriff’s office; however, these physically demanding jobs post-discharge cannot serve as the basis for changing his narrative reason which was deemed proper at the time of separation.

The Applicant noted the Administrative Separation Processing Notification Procedure letter shows the least favorable characterization of service possible is General (Under Honorable Conditions).  The Applicant is correct in that the least favorable characterization of service possible is General (Under Honorable Conditions) when using the notification procedure.  However, when members are administratively separated by reason of Defective Enlistments and Inductions – Fraudulent Entry into Naval Service (per MILPERSMAN 1910-134) and have less than 180 days of service, an Entry Level separation may be appropriate. Based on his time in service (20 days), lack of unusual circumstances in conduct and performance, and reason for separation, the Board determined the awarded characterization of service was appropriate.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, medical and  record entries, and discharge process, the Board found   Therefore, the awarded characterization of service shall   (ENTRY LEVEL SEPARATION) and the narrative reason for separation shall remain .

The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of  discharge.  The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews, Automatic Upgrades, and Post-Service Conduct.

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 3 May 2005 until 16 May 2008, 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 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:  After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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.  There are veterans organizations such as the American Legion and the Association of Service Disable Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade.  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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB.  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 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended 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 BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.  

Post-Service Conduct:  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  Outstanding post-service conduct, 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, is considered during Board reviews.  Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle.   The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate  in-service misconduct was an aberration and not indicative of the member’s overall character.

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