ex-EM3, USN

Current Discharge and Applicant’s Request

Application Received:  20080428
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MILPERSMAN 

Applicant’s Request:  Characterization change to:  
		       Narrative Reason change to:  

Summary of Service

Prior Service:
Inactive: USNR (DEP) 20030722 - 20040224  		Active:  

Period of Service Under Review:
Date of Enlistment:  20040225	Period of Enlistment:   Years   Extension	Date of Discharge:  20070801
Length of Service:    Years    Months  08  Days	    Education Level:  	   Age at Enlistment:  	  AFQT:  90
Highest Rank/Rate:  EM3	Evaluation Marks:  Performance: 3.0(5)	Behavior: 3.2(5)	OTA:  3.15
Awards and Decorations (per DD 214):    ESWS

Periods of UA/CONF:  

NJPs:  
20040915:  Article 86 (Failure to go at time prescribed to appointed place of duty)
                   Article 92 (Fail to obey by wrongfully consuming alcoholic beverages)
                   Article 107 (Making a false official statement)
                   Awarded:  ORAL ADMONITION     Suspended:  

SCMs:  

SPCM: 	

CC:  

Retention Warnings:  
20040915:  NFIR

Medical:  2
20070703:  NMCP Emergency Psychiatry Service Evaluation
Diagnoses:
	- Axis I:	 Adjustment disorder with depressed mood
	- Axis II:  Diagnosis deferred on Axis II
	- Axis II:  History of possible malignant Nevus
		  Rectal bleeding
- Axis IV:  Routine stressors of military service, geographical separation of family of origin, financial  
                  stressors
	Axis V:	GAF of 60 (currently)

Recommendation/Plan:  
	- Administrative separation by reason of convenience of the government due to a mental condition  
                       (adjustment disorder) not constituting a physical disability.

20070718:	S: Difficulty adjusting to submarine life, complicated by financial stressors at home, and a separate medical problem, now resolved.
	A/P:  Adjustment disorder with depressed mood manifesting as an inability to adjust to life on board a US Naval vessel.  This condition impairs applicant’s performance and obviates his potential for future naval service.
	He has been offered counseling and therapy to treat this disorder with no success.  All medical avenues of relief have been exhausted.
	This condition prevents the member from completing his obligated service in an operational capacity because he is unlikely to ever be able to serve productively on board a US Naval vessel.
	These diagnosis is administratively disqualifying for naval service under MILPERSMAN 1910-120 (service member initiated discharge).
	I have done a submarine disqualification and will forward this case to the NSSC Legal Officer.

Types of Documents Submitted/reviewed

Related to Military Service:	DD 214:  	Service and/or Medical Record:  	Other Records:  
Related to Post-Service Period:	
	Employment:  	            Finances:  	     Education/Training:  
	Health/Medical Records:  	            Substance Abuse:  	     Criminal Records:  
	Family/Personal Status:  	            Community Service:  	     References:  
Additional Statements From Applicant:		From Representation:       From Member of Congress:  
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.

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

Applicant’s Issues

1.  Would like to use the GI Bill.
2.  Numerous personal stressors and no command support.
3.  Post service conduct.

Decision

Date:  20081002    	Location:  Washington D.C.	Representation:  

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

Discussion

:  The Applicant is seeking an upgrade in order to use the GI Bill.   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,  specifically the paragraph concerning Employment/Educational Opportunities, for additional information regarding .

:  ()  .  The Applicant also contends his characterization should be upgraded because at the time of his discharge he was experiencing numerous personal problems and the command was not willing to assist him.  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 records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety in the discharge action but did discern an inequity in the characterization of the Applicant’s service.  The Board considered the following factors to be mitigating:  the Applicant’s overall work performance as evidenced by his overall trait average of 3.15, the positive comments on his performance evaluations, diagnosed mental disorder, and no misconduct in the last three years of his enlistment prior to his discharge. The Board determined the Applicant’s contention that the command failed to assist him with personal problems was without merit and was contradicted by evidence in his record which indicated the member was treated for a sleep disorder and given advice pertaining to diet, tobacco cessation and alcohol use; he was seen by mental health for depression and offered counseling and therapy to treat his disorder with no success as noted in medical record of 3 July 2007.  Subsequently, the Applicant requested to be discharged.  There is no indication that the Applicant sought the advice of a chaplain or financial counselor.  Based on the aforementioned mitigating factors, the Board voted to change the character of the discharge to honorable; the narrative reason for discharge shall not change. 

:  ()  .  The Applicant submitted proof of employment and enrollment in college as evidence of post service conduct.  However, there is no law or regulation which provides an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service.  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.  Documentation to help support a post service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card company’s, or other financial institutions; documentation of a drug free lifestyle; and character witness statements.  The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case by case basis to determine if post service conduct mitigates the reason for the characterization of discharge.  After a complete review of the entire record, including the evidence submitted by the Applicant, the evidence of post-service conduct was found not to mitigate the conduct which precipitated the discharge.  The Board determined an upgrade would be inappropriate.  

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

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 or is referred to a court martial 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 other medical related reasons.  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 special 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.  The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

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