ex-SR, USN

Current Discharge and Applicant’s Request

Application Received: 20150227
Characterization of Service Received:   
Narrative Reason for Discharge:   
Reenlistment Code:  
Authority for Discharge:   MILPERSMAN 

Applicant’s Request:	Characterization change to:	
	Narrative Reason change to:	CONVENIENCE OF THE GOVERNMENT (PERSONALITY 
		DISORDER)

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	20080429 - 20080504  	Active:	

Period of Service Under Review:

Date of Current Enlistment:  20080505	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20080808	Highest Rank/Rate:  SR
Length of Service:   Year(s)     Month(s)   04 Day(s)
Education Level:  	AFQT:  54
Evaluation Marks:  NFIR

Awards and Decorations (per DD 214):	NONE

NJP:  

- 20080709:	Article 86 (Absence without leave; 20080604-20080624, 21 days)
	Awarded:    Suspended:  

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.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 11 effective 20 June 2005 until Present, Article 1910-130, Separation by Reason of Defective Enlistments and Inductions - Erroneous Enlistment.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part IV, Para 403m(7)(b), Presumption Concerning Court-Martial Specifications.

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

Applicant’s Issues

1.	The Applicant contends that his narrative reason for separation is improper as the letter from the psychiatric liaison officer letter submitted to his command cited references for personality disorder as the basis for separation and not the references his command used to process him for separation as an erroneous entry.

Decision

Date:  20150521		Location:  Washington D.C.	Representation:  

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

Discussion

As a result of the Applicant’s claim that a personality disorder impacted his discharge, and in accordance with U.S. Code, Title X, Section 1553 (e)(2), the Naval Discharge Review Board included a member who is a physician, clinical psychologist, or psychiatrist.  The Applicant’s service record documents the Applicant was diagnosed with adjustment disorder and antisocial personality disorder, severe, both of which were determined to have existed prior to enlisting, by a competent medical authority while serving in the armed forces.

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 Board did complete a thorough review of 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 included   for  of the Uniform Code of Military Justice (UCMJ): Article 86 (Absence without leave; 20080604-20080624, 21 days).  Based on the Applicant’s diagnosis of adjustment disorder and antisocial personality disorder, severe, both of which were determined to have existed prior to enlisting, by competent medical authority,  command administratively processed  for separation.  The NDRB did not have the Applicant’s complete administrative separation package to determine whether or not the Applicant waived  rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority review.

:  (Decisional) ()  .  The Applicant contends that his narrative reason for separation is improper as the letter from the psychiatric liaison officer letter submitted to his command cited references for personality disorder as the basis for separation and not the references his command used to process him for separation as an erroneous entry.  The Applicant entered active duty and reported for training at Recruit Training Command on 5 May 2008.  Documentation found in the Applicant’s service record indicates that on 22 May 2008, 16 days after reporting to Recruit Training Command, the Applicant was informed that he was being discharged and was not eligible for reenlistment due to ASMO Code 311 (Psychological Separation).  The documentation the Applicant submitted from the mental health clinic, along with his statement on the DD Form 293, shows that he was diagnosed with adjustment disorder and antisocial personality disorder, severe, both of which were determined to have existed prior to enlisting, by a competent medical authority.  Shortly after this diagnosis and the accompanying psychiatric recommendation for separation the Applicant entered into a 21 day period of unauthorized absence for which he was awarded nonjudicial punishment.  Due to the incomplete state of the administrative separation package and medical records concerning the Applicant, the Board presumed regularity in the conduct of governmental affairs in that his command administratively processed him for separation based on the in service diagnoses; a mental health condition that existed prior to enlistment; and the recommendation of competent medical authority; 

A member may be separated on the basis of erroneous enlistment, reenlistment, induction, or extension of enlistment when the enlistment would not have occurred if relevant facts had been known by the Department of the Navy or had appropriate directives been followed.  Competent medical authority diagnosed the Applicant with adjustment disorder and antisocial personality disorder, severe, both of which were determined to have existed prior to enlisting.  Had all the relevant facts about the Applicant’s condition been known by the Navy, or had appropriate directives been followed, it is unlikely that the Applicant would have been allowed to enlist.  Based on an error committed by the Navy, and no fraudulent intent on the part of the Applicant, his command administratively processed him for separation.  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.

Regardless of why the Applicant was discharged, he was in an entry-level status (within the first 180 days of enlistment) when it occurred.  Navy regulations direct that the character of service for members notified of intended recommendation for discharge while in an entry-level status be Uncharacterized except in circumstances where service when the characterization of service as Under Other Than Honorable Conditions (UOTHC) is authorized or Honorable is clearly warranted.  The Applicant’s record showed no meritorious service that would warrant an Honorable characterization of service; however, the Applicant’s 21 day period of unauthorized absence could have been considered an act or omission that constituted a significant departure from the conduct expected of members of the Naval Service that could warrant an UOTHC discharge.  In reviewing the available information in the record and the material presented by the Applicant, the NDRB presumes that the separating authority considered the Applicant’s pre-existing mental health condition as a mitigating factor to his misconduct and omitted it from consideration for his discharge characterization.  Since the Applicant served only 96 days, which includes his 21 days of absence without leave, an Uncharacterized discharge is the most appropriate characterization of service in this case.  Relief 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 remain UNCHARACTERIZED (ENTRY LEVEL SEPARATION) and the narrative reason for separation shall remain ERRONEOUS ENTRY (OTHER).

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), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 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:  Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code.  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