ex-SN, USNR

Current Discharge and Applicant’s Request

Application Received: 20091119
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:	NONE		Active:	

Period of Service Under Review:
Date of Current Enlistment:  20080711
Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20090115	Highest Rank/Rate:  SN
Length of Service: 
Inactive:  Year(s)   05  Month(s)   07 Day(s)
Active:   Year(s)     Month(s)   28 Day(s)

Education Level:    (2 year associates degree)	AFQT:  56

Evaluation Marks:	Performance:  NOB	Behavior:  NOB	OTA:  NOB

Awards and Decorations (per DD 214):	NONE

Periods of UA/CONF:  

NJP:  	SCM:  	SPCM:  	CC:         Retention Warning Counseling:  

Administrative Corrections to the Applicant’s DD 214

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

	  “FRAUDULENT ENTRY”
	
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:		Rehabilitation/Treatment:		Criminal Records:	
	Personal Documentation:		Community Service:		References:	
	Department of VA letter:		Other Documentation:	
		Additional Statements:
	From Applicant:		From/To Representation:		From/To Congress member:	

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 22, effective 16 May 2008 until 9 November 2009, 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.

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

Applicant’s Issues

1.	Nondecisional issues: The Applicant seeks a change to his re-enlistment code (RE-4) for unspecified reasons.
  
2.	Decisional issues: (Equity/Propriety) The Applicant does not believe he was depressed and states that it was more of a personal space issue while at naval recruit training.  Furthermore, the Applicant does not believe that he provided false information to enlist.  As such, the Applicant contends that his narrative reason for discharge warrants an unspecified change.   

Decision

Date:  20110211		Location:  Washington D.C.	Representation:  

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

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 the reason for discharge if such change is warranted.  In reviewing discharges, the NDRB presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Applicant provided no documentation that was not already contained within his official military service record.  The Applicant identified one decisional issue for the NDRB’s consideration.  The NDRB completed a thorough review of the circumstances that led to the discharge, and the discharge process, to ensure the discharge met the pertinent standards of both propriety and equity.

The Applicant was assessed into the service on an eight-year contractual agreement with the Navy Reserve as a Construction Mechanic, qualifying him for a $20,000.00 bonus for his enlistment.  The Applicant’s record of service while on active duty included no formal retention counseling warnings and no non-judicial punishment or trials by court-martial.  During the separation proceedings, the Applicant chose to waive his right to consult with a qualified legal counsel and to submit a written statement to the Separation Authority.  The Applicant’s separation did not warrant the right to elect an administrative hearing board.  The Applicant was recommended for administrative separation pursuant to Article 1910-134 of the Naval Military Personnel Manual (MILPERSMAN), Separation by Reason of Defective Enlistment and Induction - Fraudulent Entry Into the Naval Service.  The Applicant failed to disclose a history of psychiatric treatment or counseling and psychotropic medication prior to entry into the naval service.  Furthermore, the Applicant failed to divulge his use of illegal drugs (marijuana) while in college.  The Applicant was screened and afforded numerous opportunities to divulge truthfully the details of his background – both before enlisting, at the Military Entrance Processing Station (MEPS), and at recruit training during the “Moment of Truth.”   

The Applicant was evaluated by an appropriately credentialed mental health care provider who determined the Applicant was not mentally ill, was responsible for his behavior and conduct, but was not suitable for military service and that he was having extreme difficulty adjusting to a military environment.  He was diagnosed with an adjustment disorder with depressed mood and panic attacks.  The Applicant was evaluated subsequent to presenting in the Great Lakes Naval Medical Center emergency department for repeated panic attacks after nine days of Navy recruit training.  He was evaluated and was recommended for further observation at the local Veterans Administration hospital.  The Applicant was ultimately diagnosed with an adjustment disorder with depressed mood (existed prior to entry), a recurrent depressive disorder (existed prior to entry), and panic attacks (existed prior to entry).  These determinations were based on statements provided by the Applicant in regards to his pre-service counseling and pre-service suicidal ideation with a gun.  The Applicant divulged that he had received psychiatric treatment due to the aforementioned suicidal ideation; however, in his entrance physical and enlistment contract, he claimed only to have received counseling as a result of a concerned parent regarding his quitting a high-school sport.  The Separation Authority reviewed the recommendation for propriety and equity and determined that separation was appropriate and was warranted.  He directed the Applicant be separated pursuant to Article 1910-134 of the MILPERSMAN (Defective Enlistment and Induction –Fraudulent Enlistment) and that the Applicant’s characterization of service at discharge be UNCHARACTERIZED due to having served less than 180 days of continuous active duty service.   

:  (Nondecisional) - The Applicant seeks a change to his re-enlistment code (RE-4) for unspecified reasons.  The NDRB has no jurisdiction or authority over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces and is not authorized to change a reenlistment code.  Only the Board for Correction of Naval Records can make changes to reenlistment codes.  Regulations limit the NDRB’s review to a determination of the propriety and the equity of a discharge.  Neither a less than fully honorable discharge, nor an unfavorable "RE" code is, in itself, a bar to reenlistment; a request for a waiver may be submitted during the processing of a formal application for reenlistment through a recruiter.

:  (Decisional) ()  .  The Applicant does not believe he was depressed and states that it was more of a personal space issue while at Naval Recruit Training.  Furthermore, the Applicant does not believe that he provided false information to enlist.  As such, the Applicant contends that his narrative reason for discharge warrants an unspecified change.  The Applicant was discharged by reason of fraudulent entry into military service.  In accordance with the MILPERSMAN, a member may be separated for effecting a fraudulent enlistment by falsely representing or deliberately concealing any disqualifications.  An enlistment, induction, or period of service is fraudulent when there has been deliberate material misrepresentation, including the omission or concealment of facts, which, if known at the time, would have reasonably been expected to preclude, postpone, or otherwise affect the Sailor’s eligibility for enlistment or induction.

The Applicant contends that he does not believe he gave false information upon enlistment.  In reviewing the Applicant’s medical and service records, along with the Applicant’s medical documentation regarding his psychiatric evaluations, it was determined that the Applicant’s basis for challenge is without merit.  The Applicant enlisted and was shipped to recruit training in December 2008.  Prior to his induction and shipping, the Applicant completed a Medical Prescreen of Medical History Report (DD Form 2807-2).  The Applicant was seen by a medical officer and evaluated for enlistment; the Medical Officer’s report, and the Applicant’s provided medical background information, is documented in the Applicant’s Military Service Record on DD Form 2807-1.

While at the Military Entrance Processing Station, the Applicant completed, initialed each entry, and signed an Introductory Pre-accession Interview Form (USMEPCOM form 601-23-5-R-E) in which he:
a.  was advised to ensure all the information in his paperwork was correct before enlisting and to ensure he omitted nothing that might cause him to be considered for a fraudulent enlistment.  
b.  was advised that any new or changed information must come out now—not after he enlisted and that if the service discovers disqualifying information after his enlistment, a court-martial for fraudulent enlistment may result.  

Along with the MEPS interviewer, the Applicant answered no, by annotating his initials in the response block, to the following specific questions on the Pre-accession Interview form:

Is there anything else the doctor does not know about, but should know, that could prevent your from completing basic training such as: major surgery, allergies, reaction to bee stings, heart murmurs, asthma, migraine headaches, knee problems, back problems, psychiatric care and counseling, or attempts to commit suicide?  

With reference to the core values you read; this is your last change before having to comply with the Uniform Code of Military Justice (UCMJ).  Is there anything else you would like to talk about before you enlist?  

Finally, the Applicant certified his understanding of the following statement “I am aware that immediately after receiving the oath of enlistment, Article 83 of the UCMJ applies (Article 83, as explained in writing - Fraudulent Enlistment)” and signed the document. 

The Applicant commenced Naval Recruit Training on 18 December 2008.  On 27 December 2008, while being evaluated at the Great Lakes Naval Hospital, the Applicant divulged to the mental health staff that he had previous issues with panic attacks, suicidal ideations, and psychiatric counseling.  On 29 December 2008, the DOD-VA Psychiatric Liaison Officer, Naval Clinics Great Lakes recommend the Applicant be separated due to a diagnosis of: Adjustment Disorder with Depressed Mood (Existed Prior to Entry); Depressive disorder, not otherwise specified, recurrent (EPTE); and, panic attacks (EPTE).  The diagnosing psychiatrist further diagnosed an Axis II Personality Disorder with Borderline Traits (EPTE).  The appropriately credentialed mental health care provider further stated that the Applicant has a pre-existing history of depression associated with a suicide attempt when he put a gun in his mouth with the intent to end his life and further that he has a history of recurrent episodes of depression and incapacitating panic attacks.  Moreover, in accordance with the Naval Medicine Manual, the Applicant did not meet the minimum physical standards for enlistment or induction on entry due to his un-divulged, pre-service psychiatric history.     

The command did not pursue either punitive or administrative charges for violation of Article 83 of the UCMJ, but instead opted for the more lenient entry-level administrative separation for Fraudulent Enlistment or Induction.  Furthermore, in accordance with the MILPERSMAN, separation initiated while a member is within the first 180 days of continuous active duty will be described as an entry-level separation, except when the characterization of service as Under Other Than Honorable Conditions is authorized, or Honorable is clearly warranted.  The Applicant had no misconduct that would rate an under other than honorable discharge, and there was no evidence of unusual circumstances involving personal conduct and performance that would merit an Honorable characterization requiring approval by the Secretary of the Navy.  Since the Applicant had served only 21 days of continuous active military service at the date of notification of separation, an Uncharacterized discharge is considered the most appropriate characterization of service.

Given the facts and omissions involved, and the disqualifying nature of the pre-service treatment and diagnosed conditions, the NDRB determined that the narrative reason for separation and the awarded characterization of service were both proper and equitable and were consistent with those discharged under similar circumstances.  Accordingly, the NDRB determined that a change would be inappropriate; relief, as requested, is denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, and discharge process, the Board found   Therefore, the awarded characterization of service shall   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 and Post-Service Conduct.

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 Disabled American 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 their 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