ex-LTJG, USN
ND07-00389

Current Discharge and Applicant’s Request

Application Received:  20070209 						Characterization Received:  
Narrative Reason:  UNACCEPTABLE CONDUCT 				Authority:  BUPERS ORDER 0859

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1. Enhance employment prospects
			2. VA benefits
			3. Change separation code to JFW 
			4. Did not commit misconduct

Decision

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

Date:  20071101		Location:  Washington D.C.	Representation:  Civilian Counsel
Discussion

Issue(s) 1-2:   either  which the Board cannot form the basis of relief for the Applicant, or  the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum regarding .  

Issues 3 ().  The NDRB does not have the authority to directly change separation codes.  Under its responsibility to examine the propriety and equity of an Applicant’s discharge, it is authorized to change the reason for discharge if such change is warranted.  The administrative actions to amend an Applicant’s official records to reflect the change are taken by the appropriate branch of service.  The Board noted that the Applicant’s requested separation code, JFW, is for failure of medical/procurement standards.  The Board determined that the record clearly demonstrated that the Applicant was not discharged for this reason.

Issues 4 ().  The Applicant’s misconduct is clearly documented.  The Applicant’s implied contention, i.e. that naval medical authorities’ misapprehension and/or ignoring of his diligent reporting of the increasing frequency and severity of his headaches stemming from his accident essentially forced him to seek civilian medical attention on his own, is not supported by the evidence.  The Applicant’s military medical record indicates that his reporting of his headaches in the 10 months following the accident did not indicate the cause, frequency, and severity he presented to civilian medical personnel.  His civilian medical records clearly indicate that he was consciously attempting to avoid keeping military medical authorities apprised of his condition to such an extent that his examining neurologist only prescribed medication on the condition that the Applicant’s flight surgeon approved.  The Applicant also now contends that he never took the prescribed medication, contra to his own admission at the time of doing so.  The Applicant’s apparent position to the NDRB is that it should believe that he purposely lied in order to avoid potentially more adverse consequences of his own alleged misconduct, and thus relieve him now of the reasonable and foreseeable consequences of that lie.  In short, the Applicant argues that this Board should change his current reason for discharge, Unacceptable Conduct, to an innocuous description based on his admission to the Board of other unacceptable conduct.  The Board declines to do so.  (Of interest to the Board, in assessing the Applicant’s credibility, was the civilian post-service medical history he submitted dated 19990730 regarding his knee pain, which indicated that “no operative intervention was suggested by the military.”  The Applicant’s health record clearly documents that the Applicant was offered by military medical authorities, but declined, diagnostic arthroscopy while on active duty.)  In sum, the Board found nothing improper or inequitable in the fact that the Separation Authority accepted the Applicant’s voluntarily resignation request in lieu of further administrative discharge processing.  The reason for separation was soundly based on the evidence.

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

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:
	
	  “SECNAVINST 1920.6A”
	
The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate. 

Summary of Service

Prior Service:
Inactive: USNR (DEP)	19961002 - 19961031  	Active:   	19961101 - 19970213  
Period of Service Under Review:
Date of Commission 19970214		Years Contracted:  INDEFINITE		Date of Discharge:  19990430
Length of Service:  2  Yrs  2  Mths  17  Dys			Lost Time:  Days UA:    Days Confined:  
Education Level:  16	Age at Commission  21	AFQT:  NOT FOUND IN RECORD	Highest Rank/Rate:  LTJG
Evaluation marks (# of occasions): NOT OBSERVED FITNESS REPORTS      Awards and Decorations (per DD 214): NONE

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

19970214:	Applicant commissioned as an Ensign.

19970327:	Applicant involved, as passenger, in a motor vehicle accident.  Did not seek medical attention this date.

19970507:	Medical entry:  Follow up blunt trauma to shin 3 weeks ago.  (NDRB note: No complaint of headaches or knee pain.)
	Assessment:  Probable hematoma.
	Recommendation:  Massage, heat; full duty; follow up if not gone, will discuss with ortho but doubt treatment necessary.

19970515:	Medical entry:  Documentation of shin injury for insurance.  (NDRB note: No complaint of headaches or knee pain.)
	Assessment:  Healing “bone bruises.”
	Recommendation:  See initial provider for insurance statement.  Remain in “up” status.

19970516:	Medical entry:  Documentation of shin injury for insurance, initial apparently SF600 missing.  (NDRB note: No complaint of headaches or knee pain.)
	Assessment:  Post traumatic hematoma – reabsorbing, bit with risk for calcification.
	Recommendation:  Continue heat; follow up 1-2 months, if still present consider x-ray and ortho consult.

19970729:	Medical entry:  Complaint of headaches x 3 days, and upset stomach.  Mild diarrhea, resolving.  No blurred or double vision.  (NDRB note: No complaint of knee pain or mention of car accident.)
	Assessment:  Possible viral syndrome.
	Recommendation:  Down chit; Tylenol; increased fluids; return to clinic if symptoms get worse.

Not dated:	Medical entry:  Follow up GE, headache.  Feels 100% better; negative N/V/D; negative headache (NDRB note: No complaint of knee pain or mention of car accident.)
	Assessment:  Resolved GE.
	Recommendation:  Up DIF; follow up as needed.

19970820:	Medical entry:  Complaint of headache behind eyebrows, started last p.m.  High stress level due to drive to perform, had these types of headaches on occasion.  No coping mechanism in place for stress.  No other complaints at this time.  (NDRB note: No complaint of knee pain or mention of car accident.)
	Assessment:  Stress related headache.
	Recommendation:  Consulted Dr. P_; 2 day down chit; Motrin; counseled on stress relief; RTC Friday.

Not dated:	Medical entry:  Follow up headache.  Has identified several healthy stress coping techniques – riding, exercise, walking, short breaks (NDRB note: No complaint of knee pain or mention of car accident.)
	Assessment:  Resolved.
	Recommendation:  Return to flight status; Follow up should symptoms recur.

Not dated:	Medical entry:  Complaint of diarrhea and headache.  Diarrhea through last night, headache this a.m.  (NDRB note: No complaint of knee pain or mention of car accident.)
	Assessment:   VGE.
	Recommendation:  Observe; Imodium; Tylenol; return to clinic in am.

Not dated:	Medical entry: Follow up, diarrhea.  Has resolved with Imodium.  Headache remains localized in frontal region, pressure not pulsating. (NDRB note: No complaint of knee pain or mention of car accident.)
	Assessment:  Cephalgia, viral syndrome resolving.
	Recommendation:  May use Motrin for headache; Sudafed for congestion; return to clinic in a.m. if not resolved; rest; increased fluids; duties not involving flying.

19971017:	Medical entry:  Follow up. (NDRB note: No complaint of knee pain or mention of car accident.)
	Assessment:  Viral syndrome full resolved.  
	Recommendation:  Illegible

19971020:	Medical entry:  Complaints of headache, fever, weakness, started 2-3 days ago.  (NDRB note: No complaint of knee pain or mention of car accident.)
	Assessment:  Pharyngitis, possible sinusitis.
	Recommendation:  Discuss w/ Dr. G; Amoxicillin; Entex; Motrin; down chit; fluid, return to clinic.

19971024:	Medical entry:  Follow up pharyngitis, possible sinusitis.  Feels 100%, no symptoms, off all medications except Amoxil.
	Assessment:  S/P pharyngitis.
	Recommendation:  Up chit, DIF; follow up as needed.

19980107:	Medical entry:  Diarrhea for 11 days following Caribbean cruise vacation.  (NDRB note: No complaint of headaches or knee pain or mention of car accident.)
	Assessment:  Acute gastroenteritis, resolving.
	Recommendation:  SIQ 24 hrs, NDIF, increased fluids, minimal solids, return.

19980108:	Civilian medical entry (emergency room):  Headaches and knee pain from accident, in the last few weeks headaches have been increasingly severe as well as the other symptoms have been increasing in severity and frequency as well.  Radiology:  Left knee, no gross effusions, appears normal.  CT scan:  no intracranial abnormalities identified.
	Diagnosis:  Acute cephalalgia, bilateral anterior tibial pain, left knee pain.
	Recommendation:  As patient is flying, will treat conservatively.  Tylenol, Advil.  Follow up with his flight surgeon as soon as possible.

19980109:	Medical entry:  Follow up diarrhea.  (NDRB note: No complaint of headaches or knee pain or mention of car accident.)
	Assessment:  Resolved.  Up DIF.
	Recommendation:  Follow up as needed.

19980119:	Civilian medical entry (immediate care):  Headaches and knee pain, daily and worsening since car accident, occasional blurred vision.  Reluctant to see flight surgeon because concerned will be permanently grounded.
	Diagnosis:  Contusion of knee with persistent pain.  Headaches, possibly post concussive.
	Recommendation:  Strongly encouraged patient to discuss this with his flight surgeon as there are potential flight safety issues involved.  Referred to orthopedics and neurology.  OTC anti-inflammatory and ice.

19980203:	Civilian medical entry (neurology):  Subjective “daily headaches” since car accident, 2-3 every day lasting from an hour to several hours.  6-8 episodes of “double vision,” 2 while flying.  Concealing symptoms from flight surgeon.
	Diagnosis:  Neurologic review of symptoms entirely unremarkable.  Subjective complaints seem to outweigh objective findings.  Do not suspect any specific neurologic injury, disability, impairment, restriction or dysfunction.  
	Recommendation:  Willing to provide judicious “symptomatic” medication subject to approval of flight surgeon; prescribed Midrin, subject to approval of flight surgeon.

19980204:	Medical entry:  Sinus infection.  (NDRB note: No complaint of headaches or knee pain or mention of car accident.)
	Assessment:  Rhinitis.
	Recommendation:  Entex, increase fluids, return to clinic if symptoms worse, new or resolved.

19980205:	Civilian medical entry (ortho):  Constant knee pain since car accident.
	Diagnosis:  X-rays unremarkable.  
	Recommendation:  MRI scan to rule out internal derangement, aggressively rehabilitate.

19980209:	Medical entry:  Follow up “rhinitis.”  (NDRB note: No complaint of headaches or knee pain or mention of car accident.)
	Assessment:  Resolved.
	Recommendation:  Follow up as needed.

19980211:	Civilian medical entry (radiology):  MRI left knee.
	Impression:  Tear of posterior horn of medial meniscus.  Intact ligamentous structures and lateral meniscus.  Suspect lateral facet patellar chondromalacia.

19980218:	Medical entry: Complaint of headache, frontal lobe.  Throbbing and viselike, no visual disturbance (NDRB note: No complaint of knee pain or mention of car accident.)
.	Assessment:  Tension headache.
	Recommendation:  Tylenol, return to clinic for visual disturbances, continuing headaches.

19980220:	Medical entry: Follow up tension headache.  Feels 100%, no symptoms, no medications.  (NDRB note: No complaint of knee pain or mention of car accident.)
	Assessment:  Tension headache.
	Recommendation:  Up chit, D/F, follow-up as needed.

19980311:	Medical entry:  Ingrown toenail, partial removal.  (NDRB note: No complaint of headaches or knee pain or mention of car accident.)

19980313:	Medical entry:  Follow-up for toenail resection.  (NDRB note: No complaint of headaches or knee pain or mention of car accident.)

19980319:	Civilian medical entry (ortho):  Knee “not much better.”  Reviewed MRI scan.
	Recommendation:  Consider options and call for follow-up.
	
19980402:	Civilian medical entry (neurology):  2-month follow-up.  Midrin “total failure.” 
	Diagnosis:   Subjective “daily headaches” with normal CT scan.  Do not suspect any specific neurologic injury, disability, impairment, restriction or dysfunction.  
	Recommendation:   Flight surgeon needs to be involved in all this; prescription for niacin; request EEG; follow-up as needed; copy of chart note to Whiting Field with cover letter.

19980403:	Medical entry:  Complaint of chronic headaches and knee pain since car accident.  Headaches 2-3 times daily from 2-8 hours, seen by neurologist, can’t recall name of medication, provided no relief.  (NDRB note: no further entry in record of this date.)

19980916:	NJP -- Viol UCMJ Art. 92 (3 specs)– willfully derelict in duties by failing to cease flying when experiencing blurred and double vision; violate general order by taking drugs prescribed by civilian doctor without flight surgeon approval or BUPERS waiver; violate general order by not reporting physical indisposition to superiors and assuming flight duty when not fit to do so.
	Awarded – Written Reprimand and Restr for 14 days.

19980918:	Applicant issued Punitive Letter of Reprimand.

19980921:	Applicant appealed NJP.

19981013:	Chief of Naval Education and Training consolidated the 3 specifications into 1 specification of dereliction of duty, dismissed the two specifications of orders violation and denied Applicant’s NJP appeal.

19981022:	 Training Air Wing FIVE submitted Report of NJP to Commander, Naval Personnel Command not recommending retention of Applicant in the Navy.

19990212:	Commander, Naval Personnel Command, notified Applicant of administrative separation processing.
	[Extracted from COMNAVPERSCOM ltr of 19990310.]

19990223:	Applicant submitted   
	[Extracted from COMNAVPERSCOM ltr of 19990310.]

19990310:	Commander, Naval Personnel Command, recommended to the Assistant Secretary of the Navy (Manpower and Reserve Affairs) that  with characterization of service as 

19990315:	Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved Applicant’s discharge by reason of Unacceptable Conduct, with characterization of service as .

19990430:	Applicant discharged this date.

Types of Documents Submitted by Applicant and Considered By Board

Related to Military Service:	Service and/or Medical Record:  		Other Records:  

Related to Post-Service Period:  	
	Employment:  			Finances:  			Education: 		
	Health/Medical Records:  		Substance Abuse:			Criminal Records:  	
	Family/Personal Status: 		Community Service:  		References:  		
	
Additional Statements From Applicant:  	From Representative:    
Other Documentation (Describe)  Veteran's Administration (VA) Claim and other VA correspondence.

Pertinent Regulation/Law

A.  Secretary of the Navy Instruction 1920.6A (ADMINISTRATIVE SEPARATION OF OFFICERS), effective 21 November 1983 until 12 December 1999 establishes policies, standards and procedures for the administrative separation of Navy and Marine Corps officers from the naval service in accordance with Title 10, United States Code and DoD Directive 1332.30 of 15 October 1981.

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 Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’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 Board 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 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, 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 “PTSD.”  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 Board 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 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.  

Board Membership:  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