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Docket No. ND05-00497

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

FOR OFFICIAL USE ONLY

 ex-AA, USN
Docket No. ND05-00497

Applicant’s Request

The application for discharge review was received on 20050131.  The Applicant requests that his characterization of service received at the time of discharge be changed to honorable and the narrative reason for separation be changed to Medical Retirement.  The Applicant requests a documentary record discharge review.  The Applicant designated the Disabled American Veterans as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060112.  After a thorough review of all available records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the characterization of the discharge and reason for discharge shall not change.  The discharge shall remain General (Under Honorable Conditions) by reason of convenience of the government on the basis of a diagnosed personality disorder.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant marked the box "I HAVE LISTED ADDITIONAL ISSUES AS AN ATTACHMENT TO THIS APPLICATION."  None were found.

Issues submitted by Applicant’s 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 discharge upgrade of his current General Under Honorable Conditions discharge to Honorable, with a change of the narrative reason to Medical Retirement.

The FSM served on active service from October 12, 2002 to February 27, 2004 at which time he was discharged due to Personality Disorder. 

The FSM contends the current discharge is improper because the evidence he has submitted from the Department of Veterans Affairs reflects that he is totally disabled due to Post Traumatic Stress Disorder (PTSD), deemed service connected by that agency.

The service medical records attached to the packet also reflect a diagnosis of and treatment for Post Traumatic Stress Disorder November 21, 2003 with a note that the FM was fit for continued service. No were in the record is there a confirmed diagnosis of Personality Disorder medically ordered as a correction to the diagnosis of PTSD. Therefore the current discharge of General Under honorable Conditions due to Personality Disorder is in error, and an Honorable discharge is required. 

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 for the issue regarding the change of the Narrative Reason to Medical Retirement this is an issue for the Navy Board For Correction of Military Records and the FSM should be referred to that agency with the proper application DD Form 149.

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.”

Documentation

In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 214
Department of Veterans Affairs service connected compensation letter, undtd

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20020830 - 20021009	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20021010		Date of Discharge:  20040227

Length of Service (years, months, days):

	Active:    01 04 17  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  10 days
	Confinement:		   None

Age at Entry:  19

Years Contracted:  4

Education Level:  12				AFQT:  40

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  1.5 (2)	Behavior:  1.5 (2)		OTA:  1.91 (2)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal

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

GENERAL (UNDER HONORABLE CONDITIONS)/PERSONALITY DISORDER, authority:  MILPERSMAN, Article 1910-122 (formerly 3620225).

Chronological Listing of Significant Service Events: 

021011:	Retention Warning:  Advised of deficiency (defective enlistment and induction due to fraudulent entry into naval service i.e. petty larceny, April 1997).  Any further deficiencies in performance or conduct may result in processing for administrative separation.

030714:	NJP for violations of UCMJ, Article 121 (larceny) and Article 134 (disorderly conduct).
	Award:  Reduction in rate to E-1 (suspended for 6 months), forfeiture of $600 per month x 2 months (suspended for 6 months), and 45 days restriction and extra duty (suspended for 6 months).  No indication of appeal in the record.

030714:	Retention Warning:  Advised of deficiency (Article 121, and Article 134), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

031112:	Applicant to unauthorized absence at 0900 on 12 November 2003.

031121:	Applicant from unauthorized absence at 1100 on 21 November 2003 (10 days).

031126:	Applicant to unauthorized absence from 0615 until 0825 on 26 November 2003.

031212:	Psychological Progress Note, Fleet Mental Health, Branch Medical Clinic, NAVST, San Diego, CA:  Adjustment disorder with mixed disturbance of mood and conduct; personality disorder not otherwise specified with antisocial and paranoid traits; problems with primary support, family of origin issues, and occupational problems.
	Member is not considered to be mentally ill, (not medically boardable condition), manifests a longstanding disorder of character and behavior which is of such severity as to render this individual unsuitable for continued military service.  Although not currently suicidal or homicidal this member is judged to represent a high risk of harm to self or others if retained on active duty.  His is deemed fit to return to duty for immediate processing for administrative separation, which should be handled EXPEDITIOUSLY.  
K_ P_, LT, MSC, USNR, Psychology Intern; D_ G_, PHD, Staff Psychologist. 

040108:	Psychological Progress Note, Fleet Mental Health, Branch Medical Clinic, NAVST, San Diego, CA:  Adjustment disorder with mixed disturbance of mood and conduct; personality disorder not otherwise specified with antisocial and paranoid traits; problems with primary support, family of origin issues, and occupational problems.
	Member is not considered to be mentally ill, (not medically boardable condition), manifests a longstanding disorder of character and behavior which is of such severity as to render this individual unsuitable for continued military service.  Although not currently suicidal or homicidal this member is judged to represent a high risk of harm to self or others if retained on active duty.  His is deemed fit to return to duty for immediate processing for administrative separation, which should be handled EXPEDITIOUSLY.  
K_ P_, LT, MSC, USNR, Psychology Intern; D_ G_, PHD, Staff Psychologist. 

040127:	Medical evaluation by Fleet Mental Health, Branch Medical Clinic, NAVST, San Diego, CA:  Adjustment disorder with mixed disturbance of mood and conduct; personality disorder not otherwise specified with antisocial and paranoid features; military life and occupational stressors.
	Unsuitable for military duty.
	J. H_, PHD, Staff Psychologist

040209:	Medical evaluation by Branch Medical Clinic:  Mood disorder not otherwise specified; posttraumatic stress disorder and adjustment disorder with mixed disturbance of emotions and conduct by history; personality disorder not otherwise specified by history.
S_ S_ LCDR, MC, USN, Staff Psychiatrist.

040212:	NJP for violations of the UCMJ Article 92 (failure to obey an order or regulation, not reporting to his assigned duties) and Article 86 (unauthorized absence, 12 November 2003 until 21 November 2003 and 26 November 2003 until 26 November 2003).
	Award:  Restriction for 30 days, reduction to E-2.  No indication of appeal in the record.

040220:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of convenience of the government - personality disorder and misconduct - pattern of misconduct.

040220:	Applicant advised of rights and having consulted with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

040225:	Commanding Officer, USS DUBUQUE (LPD 8) recommended to Commander, Naval Personnel that AA L_ (Applicant) be administratively discharged.  Commanding Officer’s comments:  “On 12Feb04, AA L_(applicant) was found guilty at Commanding Officer’s Nonjudicial punishment on USS DUBUQUE for unauthorized absence (UCMJ Article 86) an failure to obey a lawful order (UCMJ Article 92).  Based on these punishments, tied with earlier Commanding Officer’s nonjudicial punishments from his previous command, I recommend AA L_(applicant) be separated from the United States Navy by reason of pattern of misconduct.  Due to the fact that he requires certain benefits to assist him with his personality disorder, I recommended he be discharged with a general (under honorable conditions) characterization.  This is in accordance with MILPERSMAN 1910-122 AND 1910-140.”

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040227 by reason of convenience of the government on the basis of a diagnosed personality disorder (A) with a service characterization of general (under honorable conditions).  After a thorough review of all available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).  

To permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  When the service of a member of the U.S. Navy has met the standard of acceptable conduct and performance, it is appropriate to characterize that service as honorable.  A general (under than honorable conditions) discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects his military record.  The Applicant’s service was flawed by two nonjudicial punishments for violations of the UCMJ Article 86 (unauthorized absence, 2 specifications), Article 92 (failure to obey an order or regulation), Article 121 (larceny), and Article 134 (disorderly conduct).  Furthermore, the Applicant was issued a retention warning following the discovery of his fraudulent entry.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirement of his contract with the U.S. Navy and falls short of that required for an upgrade of his characterization of service.  Relief denied.

The Applicant requested that his narrative reason for separation be changed to “Medical Retirement”.  He also contends that personality disorder is not the correct narrative reason because he was first diagnosed with post-traumatic stress disorder and his medical records were never officially ordered corrected to a diagnosis of personality disorder.  The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted.  In this case, four qualified medical officers diagnosed the Applicant on four occasions with a personality disorder.  Subsequently, the Applicant was discharged in accordance with reference (A), which directs that Block 28 “Narrative Reason for Separation” contain the words “Personality Disorder”.  No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged.  To change the Narrative Reason Separation would be inappropriate.  The Applicant is further advised that, per regulations, the NDRB has not authority to change a reason for discharge from or to one for physical disability.  Relief denied.

The Applicant contends that since the Veterans Administration awarded him a 100% medical disability based on post-traumatic stress syndrome, that his discharge should be upgraded.  The Veterans Administration’s determination of eligibility for post-service benefits is a completely independent process with differing rules from the Naval Discharge Review Board’s review of propriety and equity.  There is no requirement or law that grants service recharacterization based upon a ruling by the Veterans Administration.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  This issue does not serve to provide a foundation upon which the Board can grant relief.  Relief not warranted.

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 should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  The Applicant did not submit post service documentation for the board’s consideration.  

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.  The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 2002 until 19 June 2005, Article 1910-122 (formerly 3620225), 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 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.

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