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

FOR OFFICIAL USE ONLY

 ex-ADAN, USN
Docket No. ND06-01006

Applicant’s Request

The application for discharge review was received on 20060728.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing before the Board in the Washington, D.C. Metropolitan area.  The Applicant designated a civilian attorney as the representative on the DD Form 293.

Decision

A personal appearance discharge review was conducted in the Washington, D.C. Metropolitan area on 20070606.  At the conclusion of the board the Applicant was provided with a week to submit additional documentation.  The Board reconvened and voted on the Applicant’s case on 20070620.  After a thorough review of the testimony, records, supporting documents, facts, and circumstances unique to this case, impropriety in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the characterization of Applicant’s service shall be changed and that the Narrative Reason shall remain the same.  The discharge shall change to: HONORABLE/PERSONALITY DISORDER authority MILPERSMAN 1910-122, Separation Code “JFX.”  

PART I - ISSUES AND DOCUMENTATION

Decisional Issues

Issue 1: Propriety Procedure – failure to get second medical opinion and lack of military legal counsel compliance with Naval Regulations.

Issue 2: Equity – Misdiagnosis of personality disorder on separation

Issue 3: Equity – Post discharge exemplary conduct

Documentation

In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:

Letter from Veterans Assistance Program, dated April 27, 2006 (2 pages)
32 C.F.R. Section 724.501, Procedural rights of the applicant (3)
Motion to reconsider former decision for an in-person appearance before the discharge review board, dated March 1, 2006 (2 pages) (6)
Brief in support of motion to reconsider (4 pages) (4)
Report of Dr. N_ A. K_, M.D., dated January 13, 2006 (39 pages) (4)
Extracts from Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision (12 pages) (4)
Letter from Veterans Assistance Program, dated July 21, 2006 (2 pages)
Letter to attorney from Board for Correction of Naval Records, dated June, 1, 2006
Letter from Veterans Assistance Program, dated March 3, 2006 (3)
Letter from Applicant, undated
Letter from T_ J. R_, Veteran’s Law Center, dated June 11, 2007
Evaluation Report and Counseling Record dated June 15, 1999
Evaluation Report and Counseling Record dated 15 March 2000
Evaluation Report and Counseling Record dated August 11, 2000

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19980128 - 19980617	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19980618		Date of Discharge:  20000811

Length of Service (years, months, days):

	Active:    02  01  25
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  18

Years Contracted:  4

Education Level:  12				AFQT:  41

Highest Rate:  ADAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.0				Behavior:  2.33		OTA:  2.86

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Armed Forces Expeditionary Medal, Sea Service Deployment Ribbon

* Not Available

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

GENERAL (UNDER HONORABLE CONDITIONS)/PERSONALITY DISORDER, authority:  MILPERSMAN, Article 1910-122 (formerly 3620225).

Chronological Listing of Significant Service Events: 

000711:	Consult to mental health.  20 year old male for eval.  Denies suicide ideation and denies expressing suicidal ideation.  Patient does not want psychiatric evaluation.  Patient refuses evaluation.  Patient released to command and advised to consult SECNAVINST 6320.24A.

000721:	Outpatient Mental Health Evaluation:  Member referred on 000717.  Service member came to command attention subsequent to a letter in which he stated, “I’m sick of this s---!  I choose death before I choose to go on this road.  I demand this be death.”  When interviewed, he was reported to be extremely volatile, frustrated and hostile.  In telephone conversations with the senior enlisted member of the subject’s command, concerns were expressed due to the service member’s unusual behavior and concern for his personal safety.  Diagnoses:
	Axis I:	None	
	Axis II:  Schizotypal Personality Disorder, DSM IV 301.22 manifested by thinking and speech that is vague and stereotyped, suspiciousness, inappropriate affect best considered as odd or unusual, persistent behavior that is odd, eccentric and peculiar and lack of close friends or confidants other than first degree relatives.  
	Axis III:  None
	Axis IV:  None
	Axis V:  Global assessment of functioning 61 manifested by moderate symptoms including circumstantial and odd speech, occasional anxiety, moderate difficult in occupational functioning with few friends and conflicts with peers and supervisors.  More serious impairment in social functioning manifested by no dating history.
	Recommendation:  The service member does not have a mental disease.  He has a disorder of behavior and character that renders him unsuitable for military service.  It is recommended that the patient undergo expeditious administrative separation by his command due to a severe personality disorder.  If retained on active duty the service member can be expected to continue in his odd and unusual behavior and to possibly become an embarrassment to his command.  The member does not require, nor will he benefit from psychiatric care.  The member is fit to return to duty to await expeditious administration separation.  He is responsible for his actions according to the UCMJ.

000726:	Medical evaluation at Naval Hospital Oak Harbor, WA by M_ J. L_, CAPT, MC, USN, Mental Health Department.  In compliance with DoD Directive 6490.1 and SECNAV Instruction 6320.24A regarding “Mental Health Evaluations of Members of the Armed Forces” the above named service member was seen this date for a non-emergency command directed evaluation because of concern for the personal safety, extreme volatility, and hostile behavior exhibited toward members of squadron and on unauthorized absence.
Applicant diagnosed with schizotypal personality disorder, manifested by thinking and speech that is vague and stereotyped, suspiciousness, inappropriate affect best considered as odd or unusual, persistent behavior that is odd, eccentric and peculiar and lack of close friends or confidants other than first degree relatives.  The psychiatrist recommended processing for expeditious administrative separation per applicable service directives.  The member manifests a longstanding disorder of character, behavior and adaptability that is of such severity to preclude adequate military service.  Although not currently at significant risk for suicide or homicide, due to his lifelong pattern of maladaptive responses to routine personal and/or work-related stressors, he may become dangerous to himself or others in the future.  

000811:	Administrative Remarks, NAVPERS 1070/613:  Applicant discharged with a general (under honorable conditions) due to personality disorder, authority:  MILPERSMAN 1910-122.

000811:	DD Form 214:  Applicant discharged.

051006:	NDRB documentary record review Docket Number ND05-00674 conducted.  Determination: discharge proper and equitable; relief not warranted.

Service Record did not contain the Administrative Discharge package. 

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20000811 by reason of convenience of the government on the basis of a diagnosed personality disorder (A) with a service characterization of general (under honorable conditions).  After a thorough review of the testimony, records, supporting documents, facts, and circumstances unique to this case, the Board found that the characterization of discharge was improper.  The discharge was regular in all other respects (B and C).  The Board presumed regularity in the conduct of governmental affairs (D).

The Applicant requested upgrade of the characterization of his discharge on the basis of Propriety and Equity.  For discharges based on personality disorder, the discharge should be honorable unless there exists justification for a general (under honorable conditions), or entry level separation characterization.  By regulation, members notified of intended recommendation for discharge within the first 180 days of enlistment are eligible for an uncharacterized or entry-level separation characterization of service.  The Applicant had served over two years when he was notified of the Commanding Officer’s intention to recommend him for separation; therefore he was not in an entry level status.  MILPERSMAN 1910-304 states that a characterization of General (Under Honorable Conditions) is appropriate if significant negative aspects of the member’s conduct or performance of duty outweighed positive aspects of the member’s service record.  In the absence of a specific finding from an administrative board, a characterization of service as General may be awarded based on a review of the Sailor’s overall service record.  If, during a Sailor’s current enlistment, the member has been awarded evaluations with a final individual trait average of 1.99 or below, Commanding Officers must award a General discharge unless the member’s conduct has been so meritorious that an Honorable would be appropriate.  In the Applicant’s case, the Board found no significant negative aspects of the members conduct or performance such as counseling, nonjudicial punishments, or adverse evaluations to warrant a general (under honorable conditions) characterization.  Additionally the Applicant’s final individual trait average was 2.86.  Therefore, the Board found that the Applicant’s general (under honorable characterization) was improper and voted unanimously to change the Applicant’s discharge characterization to Honorable.  Relief granted.

The Applicant requested a change in his Narrative Reason for Separation on the basis of impropriety because he contends the Navy did not comply with regulations regarding the rights of service members in connection with referrals for mental health evaluations.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his contentions.  The Applicant’s statements alone do not overcome the government’s presumption of regularity.  The Applicant has produced no evidence to support his contention that applicable regulations were not followed.  By contrast, the medical diagnosis contained in the record specifically states that the command had complied with the regulations before sending him for evaluation.  The Applicant failed in his burden of overcoming the presumption of regularity.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity in his narrative reason for separation and therefore considers the narrative reason proper and equitable.  Relief denied.

The Applicant also requested a change in his Narrative Reason for Separation on the basis of equity because he contends that the military misdiagnosed his condition while he was on active duty.  The documentation and statements provided by the Applicant were not sufficient to overturn the presumption that the Applicant was properly diagnosed with a personality disorder.  The Applicant was diagnosed with a personality disorder by a competent medical authority on 20000726.  The evidence reviewed did not persuade the Board that this diagnosis and subsequent administrative separation for personality disorder were improper or inequitable.  Relief denied.

The Applicant provided evidence of post service accomplishments in support of his request for upgrade.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  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 review 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 evidence that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  The Applicant has not provided post-service evidence sufficient to grant further relief.  Relief denied.

The following is provided for the edification of the Applicant.  The Applicant has exhausted his opportunities for review by the NDRB.  The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of Naval service, if he desires further review of his case.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 27, effective 
27 March 2000 until 13 Aug 2001, Article 1910-122 (formerly 3620225), Separation By Reason of Convenience of the Government - Personality Disorder(s).

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

D.  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 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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  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”.

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