ex-EN3, USN
ND07-00397

Current Discharge and Applicant’s Request

Application Received:  20070208	Characterization Received:  GENERAL
Narrative Reason:  PERSONALITY DISORDER Authority:  MILPERSMAN 3620200

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: 
Applicant’s Issues:	1. Treated unfairly by command.
			2. Discharged because of refusal to enlist for 6 years at the same rate.
			3. Not correctly diagnosed for medical condition.
			4. Post service

Decision

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

Date:  20071018  					Location:  Washington D.C. 

Discussion

Issue 1: ().  The Applicant implies that he was treated unfairly by his command.  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 issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that he was wrongfully charged and disciplined.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  The Applicant’s conduct during the current period of service, which forms the primary basis for determining the character of his service, was marred by three nonjudicial punishments (NJP) for violations of the Uniform Code of Military Justice (UCMJ) Article 86 (Unauthorized Absence), Article 91 (Insubordinate conduct toward a warrant officer, noncommissioned officer, or petty officer), Article 92 (Failure to obey and order), and Article 128 (Assault)   Violation of UCMJ Article 92 is considered  serious offenses for which a punitive discharge is authorized if adjudged by a Special or General Courts Martial.  An upgrade to honorable would be inappropriate.

Issue 2: ().  The Applicant implies that he was discharged because he refused to reenlist for an additional six years at the same rate.  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 issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support this contention.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  

Issue 3: ().  When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline.  The NDRB generally does not consider the circumstances surrounding the Applicant’s stated condition, the implied incorrect diagnosis, nor the medical treatment provided to the Applicant to be of sufficient nature to exculpate the Applicant’s misconduct.  

Issue 4: ().  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  However, there is no law or regulation, which provides that an unfavorable discharge, may be upgraded based solely on the passage of time, good conduct, or favorable endorsements in the civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, 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, is considered.  The Applicant provided his own statement as documentation of post-service accomplishments.  The Applicant's efforts need to be more encompassing than those provided.  For example, the Applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, and certification of non-involvement with civil authorities.  The Board determined that the documentation provided by the Applicant did not mitigate the circumstances that resulted in the characterization of discharge.

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:

	  “GENERAL (UNDER HONORABLE CONDITIONS)”
	
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)	19990309 - 19990426  		Active:   	
Period of Service Under Review:
Date of Enlistment: 19990427	Years Contracted:  ; Extension:    	Date of Discharge:  20030129
Length of Service:  03  Yrs  09  Mths  02  Dys	Lost Time:  Days UA:    Days Confined:  
Education Level:  	Age at Enlistment:  	AFQT:  56	Highest Rank/Rate:  EN3
Evaluation marks (# of occasions):	Performance:  3.0(3)	Behavior:  2.3(3)		 OTA:  2.61 
Awards and Decorations (per DD 214):  SEA SERVICE DEPLOYMENT MEDAL (2), ARMED FORCES EXPEDITIONARY MEDAL, MERITORIOUS UNIT COMMENDATION MEDAL, NATIONAL DEFENSE SERVICE MEDAL

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

19990810:	NJP -- Viol UCMJ Art. 92 – Smoking in a duty status.
	Awarded - FOP ($502.00) for (2 months); Restr for (45 days); Extra duties (45 days), oral reprimand.

20010403:	NJP -- Viol UCMJ Art. 91 – (3 Specs), Insubordinate conduct toward warrant officer, noncommissioned officer, or petty officer.
	Awarded - Restr for (30 days).

20010611:	NJP -- Viol UCMJ Art. 86 – Absent without leave; viol of UCMJ Art. 128 - Assault.
	Awarded - FOP ($100.00) for (1 month); RIR (suspended for 6 months); Restr for (60 days).

20020917:	Medical Record.  Applicant submits to Competence for Duty Appointment.  ETOH on breath.

20020920:	Medical Record:  Applicant diagnosed with substance use disorder.  Recommended Intensive Outpatient Program.

20021002:	Medical Record.  Applicant submits to Competence for Duty Appointment.  ETOH on breath.

20021102:	Medical Record.  Applicant completes SARD.

20021205:	Medical Record.  Applicant referred to Mental Health Unit for evaluation of depression and personality disorder.

20030122:	Medical Record:  Reason for visit:  Routine follow-up.  The applicant continues to have significant behavior problems on the ship and has been in multiple hostile verbal arguments with people.
	Diagnosis:  
Axis I: Alcohol Dependence Substance Induced Mood Disorder
Axis II: Antisocial Personality Disorder (Primary Diagnosis)
	Axis III: Hepatitis C
	Axis IV: Occupational problems, Problems with primary support group
	Axis V: 51 
Recommendation:  The Applicant is unsuitable for military service due to a personality disorder.  Administrative separation in accordance with MILPERSMAN 1910-122 (separation based upon a personality disorder) is recommended.  This patient has a longstanding disorder of character and behavior of such severity as to interfere with this individual’s military performance and makes him a significant risk to himself if retained on active duty.  In addition, the Applicant has admitted to continued alcohol use although he has not had any alcohol related incidents, he may be considered a SARD treatment failure.   Patient is responsible for his behavior.

Discharge Process

Date Notified:					NOT FOUND IN RECORD
Reason for Discharge:	PERSONALITY DISORDER

Least Favorable Characterization:	

Date Applicant Responded to Notification:		NOT FOUND IN RECORD
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			
	Administrative Board			
	GCMCA review				

Commanding Officer Recommendation (date):	
Separation Authority (date):	NOT FOUND IN RECORD
              Reason for discharge directed:	 
              Characterization directed:	
Date Applicant Discharged:	20030129

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)       

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 25 January 2004, 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 II, Para 211, Regularity of Government Affairs, Part V, Para 502, Propriety and Para 503, Equity.

C.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 92.

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