ex-MM2, USN
ND07-00500

Current Discharge and Applicant’s Request

Application Received:  20070305 				Characterization Received:  
Narrative Reason:  CONDITION, NOT A DISABILITY 	Authority:  MILPERSMAN 1910-120

Applicant’s Request:  Narrative Reason change to: 

Applicant’s Issues:	1.  Request not to be held liable for repayment of reenlistment bonus.
			2.  Was not allowed sufficient time to prepare for separation.
			3.  Narrative reason should be changed because VA awarded a 10% disability.
			4.  Was never presented before a medical board.

Decision

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  CONDITION, NOT A DISABILITY.

Date:  20071108  					Location:  Washington D.C.

Discussion

Issue 1and 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 .  

Issue 3 ():  For the edification of the Applicant, the Veterans Administration determines eligibility for post-service benefits.  This process is completely separate and unrelated to the NDRB’s responsibility to determine the propriety and equity of a discharge.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits or based upon a disability ruling by the Veterans Administration.  

With regard to the Applicant’s request to have his narrative reason for discharge changed the NDRB will change the reason for discharge if such a change is warranted.  The MILPERSMAN designates specific phraseology to be used in block 28 of the DD-214.  In the Applicant’s case the separation process was in strict compliance with the Naval Military Personnel Manual.  The Applicant was properly processed for separation by reason of convenience of the government due to non availability for world wide assignment due to medical limitations.  The Applicant’s record clearly documents his 22 months of medical treatment following his shoulder surgery.  The Applicant was found not physically qualified by the Department of the Navy Bureau of Medicine and Surgery and subsequently properly processed for separation in accordance with MILPERSMAN 1910-120; the separation authority directed that that Applicant be discharged under Honorable conditions.  The Naval Military Personnel Manual 1910-120 for the period in question directs that Block 28 contain the phrase “CONDITION, NOT A DISABILITY” when separating under these conditions.  To change the Narrative Reason Separation would be inappropriate.

Issue 4 ():  The Applicant states that he did not go before a medical board.  Per regulations the initiation and submission of medical boards are at the discretion of the individual physician.  There is no indication in the evidence of record or in the documentation submitted by the Applicant that the Applicant was recommended for or processed for a medical board.  Further the evidence of record does not indicate that proper authority erred by not initiating a medical board for the Applicant.  Therefore, the Board found the Applicant’s issue without merit.

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence (to include evidence submitted by the Applicant) to rebut the presumption.  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 an administrative error on the original DD Form 214:

	  “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 20001040 UNTIL 20030318”
	
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)	20000307 - 20001003  		Active:   	20001004 - 20030318  
Period of Service Under Review:
Date of Enlistment: 20030319		Years Contracted:  		Date of Discharge:  20060113
Length of Service:  02 Yrs 09 Mths 25 Dys				Lost Time:  
Education Level:  	Age at Enlistment:  	AFQT:  85	Highest Rank/Rate:  MM2
Evaluation marks (# of occasions):	Performance:  3.7		Behavior:  3.3	 OTA:  3.50 (3) 
Awards and Decorations (per DD 214):  NATIONAL DEFENSE SERVICE MEDAL, FIRST GOOD CONDUCT MEDAL FOR THE PERIOD ENDING 031003, SEA SERVICE DEPLOYMENT RIBBON, GLOBAL WAR ON TERRORISM SERVICE MEDAL, ENLISTED SUBMARINE WARFARE SPECIALIST BREAST INSIGNIA

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

20040209:	Applicant place on limited duty for 8 months.

20040316:	Surgery to Applicant’s right shoulder. 

20040810:	Applicant found fit for duty.

20051107:	Department of the Navy Bureau of Medicine and Surgery advised Commander, Naval Personnel of the Applicant’s physical disqualification from submarine and nuclear field duty due to a history of chronic right shoulder pain and psychotropic medication use. 

20060103:	BUPERS directed Commanding Officer, Naval Intermediate Maintenance Facility, Pacific Northwest to process applicant for administrative separation due to notice of unsuitability for operational duty.

20060104:	Retention Warning for being diagnosed with right shoulder instability and chronic right shoulder pain, and have been screened an unsuitable for submarine and sea duty, rendering you unavailable for worldwide assignment.

Discharge Process

Date Notified:					20060104
Reason for Discharge:	 -  MEDICAL LIMITATIONS
Least Favorable Characterization:	

Date Applicant Responded to Notification:		20060104
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			
	GCMCA review				

Commanding Officer Recommendation (date):	
Separation Authority (date):	COMMANDING OFFICER, NAVAL INTERMEDIATE MAINTENANCE FACILITY, PACIFIC NORTHWEST (20060105)
              Reason for discharge directed:	
              Characterization directed:	
Date Applicant Discharged:	20060113

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), effective 25 May 2005 until Present, Article 1910-120, SEPARATION BY REASON OF CONVENIENCE OF THE GOVERNMENT - PHYSICAL OR MENTAL CONDITIONS.

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