Author: CAP
Last saved by: joyce.meeks
Company: NCPB

Docket No. MD05-00311

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

FOR OFFICIAL USE ONLY

ex-LCpl, USMC
Docket No. MD05-00311

Applicant’s Request

The application for discharge review was received on 20041130.  The Applicant requests the Discharge Narrative Reason for Separation be changed to “Convenience of the Navy/Marine Corps/Gov’t.”  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.  Subsequent to the application, the Applicant obtained representation by the Disabled American Veterans.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050831.  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the Narrative Reason for discharge was discovered by the NDRB.  The Board’s vote was unanimous that the reason for discharge shall not change.  The discharge shall remain Honorable by reason of convenience of the government due to a personality disorder.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application and from an attached document/letter to the Board:

“It unfairly prejudices prospective employers against me and this is medical information protected under the privacy act that I am forced to display (See attached letter)  Be it noted that I fought to stay on active duty & was involuntary discharged as my SRB will demonstrate.  I do not deserve the constant prejudice & inability to secure gainful employment in the fire service because of this.”

“To Whom It May Concern:
I am requesting that an injustice on my record be corrected or removed to more accurately describe my discharge.  Specifically, I am referring to my DD214, member-4 copy, line 28 “narrative reason for separation”.  In this box it states “personality disorder”.  First, I will start by stating I do not have much any evidence to rebut this, however, I challenge the Navy to prove it remains true.  I do not have my medical records or my SRB at the time of this writing.  But, if and when you review them, my record will show that I served honorably and received an honorable discharge.  I desperately tried to remain on active duty and was involuntarily separated.  This statement on my DD214 is preventing me from obtaining worthwhile, full-time employment in my chosen career as a paramedic/firefighter.  Every job application I fill out asks about military service.  I cannot deny it, even if I do not want or accept veteran preference points.  And, most applications also specifically ask for the member-4 copy with this information on it.  I have attempted to submit the member-1 copy that does not contain that information but that is unacceptable to the employer because it is missing boxes 23-30.  This statement in box 28 has severely hampered my employability.
Subsequently, I receive no compensation for this alleged disorder.  As my record will show, I receive a 10% disability rating for developing asthma in the service, and a 0% rating for this alleged personality disorder.  Considering that I was discharged from the Corps because of it, one would think I would be receiving substantial compensation for an alleged mental illness that ended my service and keeps me in low wage positions and my family on public aid.  The first position I was denied was on or around June 2002 prompted me to make an appointment at the Westside VA Hospital in Chicago to be reevaluated for this disorder.  I met with a physician for about five minutes, he wrote some stuff down, and said I was ‘fine’.  That’s the last I ever heard.  My contention is that this either needs to be removed from my member-4 copy, or I need compensation for it, both of which have been denied thus far.
Lastly, I am going to cite the HIPPA legislation.  Along with the act itself, it gave congress thee years to pass comprehensive health privacy legislation.  Since they did not pass this legislation in time, it was passed on to the Department of Health and Human Services to enact.  The new regulations which took effect on April 14, 2001 are known as the Standards for Privacy for Individually Identifiable Health Information, or more commonly, the Privacy Rule.  It wouldn’t seem like it applies here, however, the basic stipulation is that I get to decide what health information is communicated to others.

“Others” is defined as physician, medical staff, employer, and so on.  And, this applies to physical and mental health issues.  Since the information is contained in a document I am required to present for employment, I am losing my right to non-disclosure of my
medical record.  This is a clear violation of this act.
Sadly, I am extremely qualified for the fire department.  I am a licensed paramedic (which my Illinois Veteran’s Grant funded), a certified Firefighter II, a Fire Apparatus
Engineer, certified in Hazardous Materials Awareness, and certified in Emergency Response to Terrorism.  I could be an extremely valuable asset if it weren’t for this on simple box on my DD214.  And, when I score number one out of about three hundred Applicants (it is a competitive process to get hired as a fireman here, and usually consists of hundreds of Applicants for one or two positions), and do not get the job, the only logical conclusion is it must be the statement in box 28.  I come to this conclusion because the only other disqualifiers would be drug use, felony convictions, or lack of qualifications, none or which apply to me.
In conclusion, I ask that this request be handled expeditiously as I am again attempting to gain employment with another full-time career fire department, specifically the City of Chicago where I live.  This is a huge opportunity for me and my family as the city hires very rarely and the salary and benefits are tremendous.  I would be able to obtain regular health insurance for myself and my family, and I have used a considerable amount of my education benefits to fund my training.  Please consider this request, as you seem to be the last hope in the matter.  Everybody wins if this simple request is granted.  I am willing to do whatever it takes.  Thank you in advance for you time and effort.

Sincerely,
[signed]
J_ P- (Applicant)

P.S.   Please see also the enclosed copy of what I was required to submit in order to proceed in the hiring process for the Chicago Fire Department.  Direct your attention to the ‘PHOTOCOPIES of the following’ heading.  Number 6 specifically asks for a copy of ‘DD214 (Military Discharge Form, showing date & type of discharge, if applicable).  We all know this information is NOT on the member-l copy, but only the member-4 which divulges my confidential information.  I am not even asking for veteran’s preference form the city, however, the application asks about military service, and I cannot lie about it, and now I must submit my DD214.  Do you see the dilemma? This is representative of virtually every application and hiring process I go though to obtain worth while, full- time employment with a career fire department.”

Additional issues submitted by Applicant’s counsel/representative (Disabled American Veterans):

“Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a change of the Narrative Reason For Separation from Personality Disorder to Convenience of the Government.

The FSM served on active service from December 9, 1993 to December 15, 2000 at which time he was discharged due to a Personality Disorder. The evidence of which is only present on the DD 214, as the service medical records are absence. 

The FSM contends the current discharge is improper as he never believed to have had the disorder, which the lack of presence has been verified by the Department of Veterans Affairs. To date the FSM has suffered prejudice and an inability to obtain gainful employment due to the stigma of this notation on his DD 214.

Additionally, HIPPA legislation which took effect April 14, 2001, under the Standards for Privacy for Individually Identifiable Health Information (Privacy Rule) allows for the non-disclosure of an individuals medical history. By the notation of Personality Disorder on the FSM’s DD 214 there is a clear HIPPA violation, and therefore corrective action must be administered.

This creates a need for a review of the application of the standard, for the Board to determine that the Applicant’s discharge was improper. The Board will determine which reason for discharge should have been assigned based upon the facts and circumstances before the Board, including the service regulations governing the reasons for discharge at that time, to determine whether relief is warranted. See, SECNAVIST 5420.174 D, Sect. 407, part 3.

As the representative, we ask that consideration be given to equitable relief, based on the above statement, as this is also a matter that involves a determination whether the Narrative Reason for Separation should be changed under the equity standards, to include any issue upon which the Applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174D.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the Applicant.”

Applicant’s remarks on DD 293:
“ I have tried to claim a higher disability rating because of this and was seen by a doctor/psychiatrist at Westside V.A. Chicago & he said I was “fine”, thus denying  my claim, thus it needs to removed from my DD214.”
Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 214
Letter from Chicago Fire Department, dtd July 6, 2004

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Inactive:  USMCR (DEP)	19970128 - 19970210			COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19970211		Date of Discharge:  19990211

Length of Service (years, months, days):

Active:    02  00  01
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  20

Years Contracted:  4

Education Level:  8				AFQT:  84

Highest Rank:  LCpl				MOS:  2841

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.4 (4)				Conduct:  4.4 (4)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as stated on the DD Form 214):  Rifle Expert Badge

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

HONORABLE/PERSONALITY DISORDER, authority:  MARCORSEPMAN Par. 6203.3.

Chronological Listing of Significant Service Events:

981028:	Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of Oct 98 Prom 4th Quarter because of lack of dependability, judgment, responsibility.  Applicant chose not to make a statement.

980305:	Counseling:  Advised of deficiencies in performance and conduct (Your violation of Marine Corps regulations by your unauthorized absence from your unit at 0730, 980223), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980330:	Counseling:  Advised of deficiencies in performance and conduct (Diagnosed personality disorder, specifically; anti-social behavior, depressive moods, my inability to deal with temper problems, diagnosed risk to self and others, and unsuitability for further military service), necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

980911:	BAS, H&S BN, 1^st FSSG, Camp Pendleton, CA: Admin Note: PT’s record screened @ this time.  PT found to have 4 episodes of mental health screenings & diagnosed with antisocial disorder.  PT disqualified for security clearance at this time.  PT referred to IDG for review of issues.

981230:	Applicant notified of intended recommendation for general (under honorable conditions) discharge by reason of personality disorder, with the least favorable characterization of service possible as general (under honorable conditions).  The factual basis for this recommendation was medical diagnosis and Page 11/6103 entries of 980301, 980330 and 981028.

981230:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

UNDATED:	Commanding Officer, Headquarters and Service Battalion, Camp Pendleton, CA, recommended Applicant’s discharge with a general (under honorable conditions) by reason of personality disorder.

990128:	Acknowledged understanding of eligibility but not recommended for promotion to Cpl for the month of Mar 99 Prom 1st Quarter because of lack of dependability/lack of judgment.  Applicant chose not to make a statement.

990209:	SJA (unreadable).

990209:	GCMCA (unreadable).

Service Record Book contains a partial Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19990211 by reason of convenience of the government due to a personality disorder (A) with a service characterization of honorable.  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).  The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (D).    

The documentation and statements provided by the Applicant were not sufficient to overturn the presumption that the Applicant was properly diagnosed with a personality disorder.  The Applicant was counseled for his personality disorder diagnosis on 19980330 and notified of his unsuitability for military service.  The evidence reviewed did not persuade the Board that this diagnosis and subsequent administrative separation was improper or inequitable.  Relief denied.

The Applicant “challenges” the Navy to prove that he still has a personality order.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  The Applicant provided no documentation or evidence, aside from his statements, to rebut the narrative reason for his discharge.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  However, even if the Applicant could provide evidence to show that he no longer has a personality disorder, such evidence would not necessarily demonstrate that the applicant was not properly diagnosed with a personality disorder at the time of discharge.  Relief denied.  

The Applicant contends that he should be compensated for his “alleged mental illness” or that the narrative reason should be removed from his DD 214.  The Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board.  Additionally, 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 on the propriety and equity of the discharge.  

The issue presented by the Applicant concerning the disclosure of protected health information in violation of the Health Insurance and Portability Accountability Act (HIPP) Public Law 104-191, has been reviewed and determined to be without merit.  Department of Defense Regulation 6025.18R, which mandates DOD compliance with HIPPA, specifically authorizes the disclosure of protected health information when required by law or when necessary to carry out necessary military activities.  Since DOD is required to issue a DD-214 to separating members that contains a narrative reason for discharge, there is not violation of departmental regulations, the Privacy ACT or HIPPA, even when that document cites the narrative reason ad “Personality Disorder.”
 
The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6203, CONVENIENCE OF THE GOVERNMENT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 18 Aug 95 until 31 August 2001.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

PART IV - INFORMATION FOR THE APPLICANT

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 Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive.  You should read Enclosure (5) of the Directive 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 Directive 1332.28 and other Decisional Documents by going online at “http://Boards.law.af.mil”.

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

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.