ex-EN3, USN

Current Discharge and Applicant’s Request

Application Received: 20101109
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)	20041022 - 20050525  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20050526	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20060928	Highest Rank/Rate:  EN3
Length of Service:   Year(s)     Month(s)   03 Day(s)
Education Level:  7+	AFQT:  90
Evaluation Marks:	Performance:  3.0 (2)	Behavior:  3.0 (2)	OTA:  3.00

Awards and Decorations (per DD 214):	 

Periods of UA/CONF:  

NJP:  	SCM:  	SPCM:  	CC:  	Retention Warning Counseling:  

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 28 May 2008, Article 1910-122, 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.

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

Applicant’s Issues

1.	Applicant seeks an RE code and discharge upgrade to reenlist in the U.S. Armed Forces.
2.	Applicant contends he was improperly diagnosed with a personality disorder.
3.	Applicant contends his discharge was improper and not in accordance with the requirements set forth in the Naval Military Personnel Manual (MILPERSMAN).

Decision

Date:  20120209		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.  Although the Applicant’s service records are incomplete (missing administrative separation documentation to include: Fleet Mental Health Department report and recommendation for administrative separation, notification of administrative separation and acknowledgment of rights forms, and the commanding officer administrative separation package endorsement and comments), the Board completed a thorough review of the available records and the circumstances that led to  discharge and the discharge process to ensure  discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service did not include any NAVPERS 1070/613 (Page 13) retention warnings, commanding officer nonjudicial punishment (NJP), or trial by courts-martial.  The record did reveal the Applicant was transferred from Great Lakes, IL to Naval Special Warfare Center San Diego in Feb 2006 to begin Basic Underwater Demolition/SEAL (BUDS) training.  He commenced training on 3 Mar 2006, but was dropped in Week 1.  Shortly after dropping from BUDS training, the Applicant was examined for sea duty on 18 May 2006.  The medical exam documentation states, “During questioning, PT’s nightly depression x 3 years, daily anxiety, headaches x 2-3 days for last 3 weeks, and difficulty sleeping became apparent…Pt was recently disenrolled from BUDS training.  States he has no desire to harm self.  Had history of depression prior to entry into Navy.  Never evaluated for depression or anxiety.  Pt appeared visibly anxious with shaking hands, diaphoresis, agitation, and nervous speech.  Responses to questions were vague.  Probable cause Depressive Disorder.  Consult to mental health; unfit for sea duty transfer.”  Medical record excerpts indicate the Applicant was diagnosed with depression in Jun 2006, but was not given medication due to his alcohol abuse and desire to not give up drinking alcohol.  In Aug 2006, after seeing a psychiatrist and therapist, he was diagnosed with schizotypal personality disorder after Personality Assessment Inventory testing.  On 12 Sep 2006, the Commanding Officer, Naval Special Warfare Center (NSWC) San Diego, referencing a 12 Aug 2006 Fleet Mental Health Department administrative separation recommendation, directed the local Personnel Support Detachment to discharge the Applicant with a General (Under Honorable Conditions) discharge due to Personality Disorder.  The NDRB did not have the Applicant’s administrative separation package to determine whether he exercised or waived  rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority review.  The Applicant was separated from the Navy on 28 Sep 2006 with a General (Under Honorable Conditions) discharge due to Personality Disorder.

:  (Nondecisional) The Applicant seeks an RE code and discharge upgrade to reenlist in the U.S. Armed Forces.  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 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.

:  (Decisional) ()  .  The Applicant contends he was improperly diagnosed with a personality disorder.  In reviewing discharges, the NDRB 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.  With respect to a discharge based on a medically diagnosed condition (to include personality disorders), the action of the NDRB is restricted to matters of propriety and equity as established in the applicable orders and directives governing administrative separations.  Unless significant, substantial, and credible information exists to rebut the medical authority’s findings that occurred at or about the time of the Applicant’s separation from service, the NDRB does not have jurisdictional authority to override medical authority diagnoses or findings that result in administrative separation.  In response to the Applicant’s request for review, the medical determinations and the resultant recommendation for administrative separation determined by competent medical authority are presumed to be established facts by the NDRB.  As such, the Applicant’s request for review was considered under the pertinent standards of propriety to determine if any factors in this particular case merited a change in the narrative reason for separation.  After careful consideration of all the available evidence, the Board determined that the Applicant’s issue did not provide a basis for which relief could be granted.  Relief denied.

:  (Decisional) ()  .  The Applicant contends his discharge was improper and not in accordance with the requirements set forth in the MILPERSMAN.  In conducting the review of the Applicant’s records, the Board noted that the records did not contain the 16 Aug 2006 Fleet Mental Health Department administrative separation recommendation referenced in the discharge directive issued by the CO, NSWC San Diego (dated 12 Sep 2006).  Additionally, the Board could find no evidence of a NAVPERS 1070/613 (Page 13) counseling/retention warning related to the Applicant’s personality disorder, the Administrative Separation Notification and Election of Rights form (NAVPERS 1910/31), or the Commanding Officer’s administrative separation package endorsement and comments.  However, the record did indicate that while undergoing a medical evaluation for sea duty (18 May 2006), the Applicant revealed a significant medical history to the physician that, in addition to the observations made during the exam, resulted in the Applicant being found not fit for sea duty and referred for follow-up with the mental health department.  Based on the timeline established by the available documentation (18 May 2006 - medical exam with a finding of not fit for sea duty; subsequent mental health consultations/evaluations; 16 Aug 2006 - Department of Mental Health report and recommendation for administrative separation; and the 12 Sep 2006 Separation Authority discharge directive), the Board found that the Applicant’s discharge did meet the pertinent standards for propriety.  Moreover, per the MILPERSMAN, a Sailor may be awarded a General (Under Honorable Conditions) discharge if a member’s service has been honest and faithful, but significant negative aspects of the member’s conduct or performance outweigh positive aspects of the member’s military record.  Additionally, upon separation, if a member’s overall trait average (OTA) is below 2.49, then a General (Under Honorable Conditions) discharge may be awarded.  The Applicant’s service record revealed an OTA of 3.00 over two reporting periods.  Based on the Applicant’s OTA average, and with no misconduct found within the record, the NDRB determined that the Applicant’s discharge was inequitable and therefore, warranted partial relief with an upgrade to Honorable.  The Narrative Reason for Separation will not change since a Personality Disorder was diagnosed by a credentialed medical care provider.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries and the administrative separation process, the Board found the discharge was proper but not equitable at the time of discharge.  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  discharge.  The Applicant is directed to the Addendum for additional information.

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