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

 ex-SN, USNR
Docket No. ND02-01249

Applicant’s Request

The application for discharge review, received 20020904, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a personal appearance hearing discharge review before a traveling panel closest to Sarasota, FL.  The Applicant designated the Disabled American Veterans as the representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a record review prior to any personal appearance hearing and further advised that the NDRB does not travel, all hearings are held in the Washington National Capital Region.

Decision

A record discharge review was conducted in Washington, D.C. on 20031017.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain:  GENERAL (UNDER HONORABLE CONDITIONS)/UNSATISFACTORY PERFORMANCE, authority: NAVMILPERSMAN, Article 1910-156 (formerly 3630300).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated:

Applicant’s issues, as stated on the application:

1.  “I have already submitted by medical reports.  My doctor M_ J. E_ in Sarasota, FL.  His address is XXXXXXXXXXX.  Dr. E_ has already submitted medical evidence and reports.  If you need to verify anything, you can reach him at the above address.”

Additional issue submitted by Applicant’s counsel/representative (DISABLED AMERICAN VETERANS):

2.  “Equity regarding character of discharge.  Based on the contentions of the Former Service Member, as well as an overview of the available records, it is requested that the Board complies with the Former Service Member’s request as expressed on DD Form 293, which is of record, and resolve any and all reasonable doubt in favor if the applicant, in the interest of justice and upgrade discharge.”

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Copy of DD Form 214
Applicant’s signed Authorization For Release of Information from M_ J. E_, M.D. dtd May 31, 20023
Dr. M_ J. E_, M.D., P.A., outpatient evaluation of Applicant, dtd Oct 1, 2001 (3 pages)
Letter from Applicant (3 pages) 

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Inactive: None
	Active:   None

Period of Service Under Review:

Date of Enlistment:  970627		Date of Discharge:  990409

Length of Service (years, months, days):

	Active:    01  09  10
	Inactive:  00  00  00

Age at Entry:  25			Years Contracted:  8

Education Level:  16			AFQT:  33

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.0 (1)	Behavior:  1.0 (1)		OTA:  1.83 (5.0 eval)

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, Navy “E” Ribbon, AFEM

Days of Unauthorized Absence:  None

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER OTHER CONDITIONS)/UNSATISFACTORY PERFORMANCE, authority:  NAVMILPERSMAN, Article 1910-156 (formerly 3630300).

Chronological Listing of Significant Service Events:

970630:	Commenced 36 months active duty under the Seaman Apprenticeship Obligor Program.

971217:	Medical Dept, USS BOXER:  26 year old male presents to sick call at request for his supervisors concerning persistent tardiness to work and failure to wear proper uniform.  Pt reports long standing history of learning disability since childhood in which he reports problems comprehending and following instruction.  Pt states completed grade school and high school at the remedial level then attended several undergraduate institutions over the course of 7 years placed on academic probation numerous times and asked to leave institutions as a result of poor academic performance.  Pt left undergraduate training without completing a degree.  Pt also reports history of poor academic performance while in boot camp and ADT school result in him being detained to repeat courses and exams.  Pt willingly reports that study efforts & note taking are poor.  Pt states clear understanding of duties and awareness of times to report for duty but states has difficulty arriving on time due to “bad habit” of poor punctuality and admits having difficulty adjusting to rigidity of military.  Pt denies disciplinary problems throughout childhood or since being in Navy.  Denies conflicts with supervisor or other co-workers.  States has made no friends in this area.  Live alone onboard USS BOXER but attends church services with family members that live in San Diego area on Sundays.  States had had various odd jobs over post several years with longest one lasting 9 months.  Denies use of drugs & alcohol.  Denies insomnia, restless sleep, early morning awakenings, anhedonia, change in appetite, suicidal ideation or homicidal ideation.  Reports history of psychiatric treatment for stress and learning to control anger in 1994 at which time pt placed on medication (name & dosage unknown) for several months.
	Assessment:  Learning disability vs rule out adjustment disorder.
	Plan:  Consult to FMHU – non emergent, for eval of level of learning disability and rule out adjustment disorder.

980217:	Mental Health Consultation Report, Naval Station, San Diego:  1st evaluation for 26 year old African-American, single, male with 7½ months continuous active duty who is currently stationed aboard USS BOXER.  Pt was informed of the limits of confidentiality and fully consented to interview.  Chief Complaint:  “My command sees me as a liability.”  Pt reports that he has been under “a lot of scrutiny” from his supervisors secondary to persistent tardiness, failure to wear proper uniform and an “inability to get tasks done on time”.  He reports that he has reportedly been counseled and threatened with masts if improvement does not occur.  He reports that he believes that his difficulty is a result of a learning disability which he has “possible his whole life.”  Reports a long history riddled with academic problems, dismissal from college, and remedial classes.  Reports that he had to take the ASVAB 4 times before he passed.  Reports that he told his recruiter about his history of learning disability, but that the recruiter “told him to lie.”  Feels like he cannot “handle it in the Navy” because “it reminds me of when I was a kid and people used to make fun of me.”  Reports that he is at a “disadvantage” and that his superiors “just need to understand that I cannot always focus on the task at hand…I’m a ‘free thinker’.”  Denies suicidal ideation/homicidal ideation.  Reports that lately (last month) he “feels under a lot of stress” secondary to the repeated counseling regarding his difficulties.  He reports that he graduated from high school and completed some college before being dismissed secondary to academic problems.  Report that the Navy is not what he thought it would be.  “I wish the spaces were bigger.”  Also states, “I don’t want to sacrifice my way of life.”  
	AXIS III:  None Known
	AXIS IV:  Occupational Problem
	AXIS V:  Current – 58, increased past year – 75
	Recommendation:  Pt was educated regarding his diagnosis and disposition.  Pt did indicate an understanding of same.  Pt denies suicidal and/or homicidal ideations currently.  Pt to return 19FEB98 at 0730 in order to complete psychological testing.  Pt currently fit for full duty, pending results form eval/testing on 19FEB98.

980715:	Evaluation Report & Counseling Record:  Applicant received an adverse eval with the following noted:
Professional Knowledge:  Delinquent Basic Damage Control and 3M Maintenance Person, has been given many hours of EMI and training to help correct this problem but to no avail.  Lacks the basic knowledge needed to perform his duties in competent manner as a deck seaman.  Has trouble understanding the most basic day to day operations of the division.Quality of Work:  Needs an excessive amount of supervision, a numerous amount of man hours has been spent on supervising due to the fact that he can not retain what he is taught the first few times, but in fact he must be shown repeatedly and still not comprehend.
Military Bearing/Character:  Failed to pass the run during the most recent command PRT.  Presents a satisfactory military appearance.  His conduct has lead to several counseling sessions both verbal and written.

[ADMIN DISCHARGE PACKAGE NOT CONTAINED IN SERVICE RECORD.]

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19990409 under honorable conditions (general) by reason of unsatisfactory performance (A).  The Board presumed regularity in the conduct of governmental affairs (B).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

Issue 1 and 2:  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the Applicant’s enlistment.  While he may feel that his diagnosed schizoaffective disorder was the reason for his discharge, the Applicant’s service record clearly indicates his below average performance and conduct.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing educational opportunities as requested in the issue.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  Furthermore, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment.  A request for waiver is normally done during the processing of a formal application for enlistment through a recruiter.  Relief is therefore denied.

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 the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  Evidence of continuing educational pursuits, a positive employment record, a drug-free lifestyle, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted.   

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), change 18, effective 12 Dec 97 to 21 Aug 2002, Article 1910-156 (formerly 3630300), Separation by Reason of Unsatisfactory Performance.

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

PART IV - INFORMATION FOR THE APPLICANT

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 Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive.  You should read Enclosure (5) of the Directive 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 Directive 1332.28 and other Decisional Documents by going online at "afls14.jag.af.mil". 
 
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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023