ex-SN, USN

Current Discharge and Applicant’s Request

Application Received: 20091215
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)	20060909 - 20070708  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20070709	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20080710	Highest Rank/Rate:  SN
Length of Service:   Year(s)     Month(s)   26 Day(s)
Education Level:  	AFQT:  51
Evaluation Marks:	Performance:  NFIR	Behavior:  NFIR	OTA:  NFIR

Awards and Decorations (per DD 214):	Pistol  

Period of UA: 20080417-20080423, 6 days

NJP:  

- 20080520:	Article  (UA)
	Article  (Wearing unauthorized rank insignia)
	Awarded:    Suspended:  

SCM:  

SPCM:  

CC:  

Retention Warning Counseling:  

- 20080229:	For Article 86, failure to go to appointed place of duty 

- 20080416:	For your diagnosed medical condition: Panic Disorder; Post-Traumatic Disorder, Sedative abuse, and Cannabis abuse.  

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

	  “08APR17 TO 08APR23”
	
The NDRB will recommend to the Commander, Navy Personnel Command, that the DD 214 be corrected as appropriate.

Types of Documents Submitted/reviewed

Related to Military Service:
	DD 214:		Service/Medical Record:		Other Records:	

Related to Post-Service Period:
	Employment:		Finances:		Education/Training:	
	Health/Medical Records:		Rehabilitation/Treatment:		Criminal Records:	
	Personal Documentation:		Community Service:		References:	
	Department of VA letter:		Other Documentation:	
		Additional Statements:
	From Applicant:		From/To Representation:		From/To Congress member:	

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), Change 16 effective 24 July 2006 until 27 July 2008, 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.	Nondecisional issues: Applicant seeks an upgrade in the characterization of his service at discharge in order to facilitate re-enlistment into the Armed Forces of the United States. 

2.	Decisional issues: (Equity) The Applicant contends that his characterization of service at discharge was inequitable in that it was determined based on a single isolated incident in 12 months of faithful and honorable service.  
.
Decision

Date:  20110211	         Location:  Washington D.C.	   Representation:  

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

Discussion

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted.  In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Applicant identified one decisional issue for the Board’s consideration.  In addition to reviewing the Applicant’s stated issue, the NDRB completed a thorough review of the circumstances that led to the discharge, and the discharge process, to ensure the Applicant’s discharge met the pertinent standards of equity and propriety.  

The Applicant enlisted at age 18 (17 at time of joining the Delayed Entry Program), without any waivers, for a 4-year enlistment with a 24-month extension.  He enlisted with a guaranteed rank of E-3/Seaman due to 4 years of sea-cadet programs with an enlistment guarantee of advanced electronics and computers training.  The Applicant completed basic recruit training and was assigned to the Naval Training Support Center at Great Lakes at the time of his discharge.   

The Applicant’s record of service includes two NAVPERS 1070/613 retention-counseling warnings and a nonjudicial punishment for violations of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave – specifically, unauthorized absence in that the Applicant absented himself from his unit without proper authorization for 4 days) and Article 134 (General Article – for wearing unauthorized rank insignia).  The NDRB was unable to review the Applicant’s administrative separation package to determine whether the Applicant elected his right to consult with a qualified counsel or to submit a written statement to the separation authority.  The NDRB presumed regularity in the conduct of governmental affairs in that in order to effect separation, the Applicant was notified of the command’s proposed action to separate and was afforded his rights in accordance with the Naval Military Personnel Manual (MILPERSMAN) as these are required documents to effect separation.  The Applicant’s separation code on his Form DD-214 indicates that the Applicant was involuntarily discharged and that no administrative discharge hearing board was required; the least favorable characterization of service that could be recommended at separation was General (Under Honorable Conditions).  The Applicant’s service record documents that he was counseled and provided an opportunity to take corrective actions prior to being recommended for separation.  The Applicant was specifically counseled regarding his diagnosis of: (1) Panic disorder; (2) Post-Traumatic Stress Disorder (pre-service); (3) sedative abuse; and (4) cannabis abuse.  The Applicant’s application for enlistment and his pre-service medical history do not include any record of pre-service counseling treatment, drug use, or medical or psychological treatment.    

The Applicant did not provide the NDRB with any documentation that was not already included in his official military file or in Navy and Marine Corps regulations.  

:  (Nondecisional) – The Applicant seeks an upgrade in the characterization of his service at discharge in order to facilitate re-enlistment into the Armed Forces of the United States.  The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing re-enlistment opportunities.  Regulations limit the NDRB’s review to a determination of the propriety and the equity of a discharge.  Additionally, the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other branch of the Armed Forces, and is not authorized to change a reenlistment code.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  An unfavorable “RE” code or characterization of service is, in itself, not a bar to reenlistment.  A request for a waiver may be submitted during the processing of a formal application for reenlistment through a recruiter.  The Applicant may also petition the Board for Correction of Naval Records (BCNR) regarding his re-enlistment code using Form DD-149.  When requesting this change, the Applicant should provide as much documentation as possible regarding his reason for change.  The BCNR’s address is:  Board for Correction of Naval Records, 2 Navy Annex, Washington, DC 20370-5100.  Further information may be found online at http://www.donhq.navy.mil/bcnr/bcnr.htm.  

:  (Decisional) ()  .  The Applicant contends that his characterization of service at discharge was inequitable in that it was determined based on a single isolated incident in approximately 12 months of faithful and honorable service.  The Applicant was separated pursuant to a Convenience of the Government, Condition Not a Disability separation; he was not discharged for misconduct based on a single incident, a pattern of misconduct, or minor disciplinary infractions.  The separation authority for the Applicant’s discharge was Article 1910-120 of the MILPERSMAN, which addresses physical or behavioral conditions that impair a member's performance, but do not amount to a physical disability.  Though these conditions do not amount to a disability, they affect the member’s ability to serve, or the potential for continued naval service.  Based on the appropriately credentialed mental health care provider’s diagnosis, coupled with the formal retention counseling and the misconduct as evidenced by the NJP, the NDRB determined the Applicant met the requirements for separation by reason of convenience of the government – condition not a disability due to physical or mental conditions.  The separation was proper as issued and no change to the narrative reason for separation is warranted; relief based on issues of propriety is denied.    

In accordance with the guidance provided for separation for a Condition, Not a Disability, an Honorable characterization of service is directed unless a General (Under Honorable Conditions) characterization is warranted.  An Honorable characterization of service is warranted when the quality of a member’s service generally meets the standard of acceptable conduct and performance for naval personnel, or is otherwise so meritorious that any other characterization of service would be clearly inappropriate.  A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record.  

The Applicant’s record of service contains no evidence of conduct so otherwise meritorious that any characterization of discharge less than Honorable would be clearly inappropriate.  The Applicant’s service record further documents that he was formally counseled twice regarding his misconduct and his diagnosed conditions and that he was advised that any further deficiencies in his performance and/or conduct would terminate the reasonable period of time for rehabilitation that the counseling warning entries provided and may result in disciplinary action and processing for administrative separation.  Furthermore, the Applicant was advised that all deficiencies or misconduct during his current enlistment, occurring before and after the date of the counseling, would be considered.  Finally, the Applicant was advised that any subsequent violation of the UCMJ, conduct resulting in civilian conviction, or deficiency in conduct or performance of duty could result in an administrative separation Under Other Than Honorable Conditions.  Subsequent to his retention-counseling warning advisements, the Applicant received nonjudicial punishment for misconduct resulting from his unauthorized absence and wearing of unauthorized rank insignia.  

The NDRB determined that the Applicant’s conduct of record was honest and faithful, but that significant negative aspects of the member’s conduct did outweigh the positive aspects and that he was not separated due to a singular, isolated incident of misconduct, but for the convenience of the government due to a condition (physical or mental), which was not a disability.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the NDRB discerned no inequity in the characterization of the Applicant’s service at discharge.  By a vote of 5-0, the NDRB determined that the characterization of service received at discharge was warranted and that an upgrade would be inappropriate.  Relief based on inequity is denied.  

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, and discharge process, the Board found   Therefore, the awarded characterization of service shall   and the narrative reason for separation shall remain .  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his discharge.  The Applicant is directed to the Addendum, specifically the paragraphs titled Additional Reviews and Post-Service Conduct.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe 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:  After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s 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.  There are veterans organizations such as the American Legion and the Disabled American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their 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 U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB.  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 NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the NDRB’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 BCNR can make changes to reenlistment codes.  Additionally, the NDRB 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, 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 BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct:  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  Outstanding post-service conduct, 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, is considered during Board reviews.  Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; 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 companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle.   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 accomplishments help demonstrate  in-service misconduct was an aberration and not indicative of the member’s overall character.

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 NDRB 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