Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: jennifer.miles
Company: NCPB

Docket No. ND10-01838

ex-ET3, USN

Current Discharge and Applicant’s Request

Application Received: 20100721
Characterization of Service Received: (per DD 214) HONORABLE
Narrative Reason for Discharge: (per DD 214) CONDITION, NOT A DISABILITY
Authority for Discharge: (corrected) MILPERSMAN 1910-120 [CONDITION, NOT A DISABILITY]

Applicant’s Request:	Characterization change to:	NONE REQUESTED
	Narrative Reason change to:	REQUESTED, BUT NOT SPECIFIED

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	20001030 - 20001204  COG	Active:	NONE

Period of Service Under Review:
Date of Current Enlistment:  20001205	Age at Enlistment:  20
Period of Enlistment:  4 Years  24 MONTHS Extension
Date of Discharge:  20040815	Highest Rank/Rate:  ET3
Length of Service:  03 Years   08  Months   11 Days
Education Level:  15	AFQT:  81
Evaluation Marks:	Performance:  NFIR	Behavior:  NFIR	OTA:  NFIR

Awards and Decorations (per DD 214):	NMCAM (2) GCM NDSM

Periods of UA/CONF:  NONE	

NJP:  NONE	SCM:  NONE	SPCM:  NONE	CC:  NONE	

Retention Warning Counseling:  1

	20040713:  You have been diagnosed with a medical condition not amounting to a disability, but have been 
		      recommended for separation by a medical officer due to your unsuitability for sea duty.

Administrative Corrections to the Applicant’s DD 214

The NDRB noted an administrative error on the original DD Form 214:

	Block 25, Separation Authority, should read: “MILPERSMAN 1910-120”
	Block 27, Reentry code, should read: “RE-3G”

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:	☐

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

Applicant’s Issues

1.	Applicant seeks a narrative reason change to reenlist in the U.S. Armed Forces.
2.	Applicant contends her discharge was improper and that her written statement was not routed through the chain of command.

Decision

Date:  20111104	DOCUMENTARY REVIEW	Location:  Washington D.C.	Representation:  NONE

By a vote of 5-0 the Characterization shall remain HONORABLE.
By a vote of 5-0 the Narrative Reason shall change to SECRETARIAL AUTHORITY.

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.  The Board completed a thorough review of the circumstances that led to her discharge and the discharge process to ensure her discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included one NAVPERS 1070/613 (Page 13) retention warning for a medical condition (congenital left elbow radial head dislocation) not a disability.  Based on the medical condition that prevented her from performing operational sea duty, her command administratively processed her for separation.  When notified of administrative separation processing using the notification procedure on 13 Jul 2004, the Applicant exercised her rights to consult with a qualified counsel and submit a written statement, but she waived her right to request a General Court-Martial Convening Authority review.  The Applicant was separated from the Navy on 15 Aug 2004 with an Honorable discharge due to Condition Not a Disability.

Issue 1:  (Nondecisional) The Applicant seeks a narrative reason change 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 the narrative reason for separation or the reenlistment code for reenlistment purposes.  Only the Board for Correction of Naval Records can make changes to reenlistment codes.  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.  

The NDRB did note an administrative error on the Applicant’s DD Form 214, which listed an RE code of “RE-4” in Block 27.  However, documents within the record reveal the Applicant’s RE-code should have been “RE-3G.”  The NDRB will recommend to the Commander, Navy Personnel Command that the DD Form 214 be corrected as appropriate.

Issue 2:  (Decisional) (Propriety)  RELIEF WARRANTED.  The Applicant contends her discharge was improper and that her written statement was not routed through the chain of command.  The Board conducted a detailed examination of the Applicant’s records to determine whether her discharge met the pertinent standards for propriety and equity.  Documents within the record reveal the Applicant was diagnosed with congenital left elbow radial head dislocation, which was subsequently treated via physical therapy.  However, physical therapy did not improve the condition.  In May 2004, the General Medical Officer, USS John C. Stennis and the Branch Medical Clinic, NAS North Island determined that the Applicant was not physically suitable for sea duty.  Recommendations listed on the NAVMED 1300/1 form included: “1) Needs Medical Board; or 2) Remain on shore duty; or 3) Administrative Separation.”  On 13 Jul 2004, the Applicant’s Commanding Officer notified her of pending administrative separation for condition not a disability.  The Applicant states on her DD Form 293 that she submitted a written statement regarding the proposed separation, but it was not routed through her chain of command.  The Board noted that the Applicant did elect to exercise her right to submit a written statement to the Separation Authority, however, the written statement and any reference to the statement could not be found within the records.  Additionally, the Board noted that the Commanding Officer did not completely follow the direction in MILPERSMAN Section 1910-120, which states that “specific documentation is required from the medical officer that the condition renders the member incapable of 

completing his/her obligated service (EAOS) in any capacity, e.g. forced conversion, reassignment, etc.”  Additionally, it states, “If the CO determines the member has potential for continued naval service, albeit unable to execute operational duty orders, submit a separation package with CO’s recommendation for retention.  The package will be reviewed by Navy Personnel Command and Chief of Naval operations (N13), and retention will be determined based on the needs of the Navy.”

While examining all the available evidence, the NDRB determined that although the Applicant’s processing for administrative separation was initially proper (based on the Applicant’s medical condition, which was not a disability), the fact that her command did not completely fulfill the requirements set forth in MILPERSMAN 1910-120 (missing medical officer determination on whether the Applicant’s medical condition rendered her unsuitable for completing her obligated service in any capacity, and the Commanding Officer’s determination of potential for further naval service along with a forwarding endorsement to the Commander, Navy Personnel Command) in effect denied her the opportunity for retention (as decided by the Commander, Navy Personnel Command) and completion of her active obligated service as provided for within the MILPERSMAN guidance.  Moreover, the NDRB acknowledges that had the Applicant’s command followed the specific guidance listed in the MILPERSMAN, she may or may not have been allowed to complete her enlistment.  Accordingly, the NDRB found the Applicant’s discharge to be improper.  Relief warranted.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries and the administrative separation process, the Board found the discharge was improper.  Therefore, the awarded characterization of service shall remain HONORABLE and the narrative reason for separation shall change to SECRETARIAL AUTHORITY.  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of her discharge.  The Applicant is directed to the Addendum for additional information.

Pertinent Regulation/Law

A.  Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 22 September 2004, 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. 

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

Key:	NFIR - Not found in record 	UA - Unauthorized absence	NJP - Nonjudicial punishment	SCM - Summary court-martial
	SPCM - Special court-martial	FOP - Forfeiture of pay	RIR - Reduction in rank	EPD - Extra duties
	CONF - Confinement	CC - Civilian conviction	CCU - Correctional Custody Unit	BW - Confinement on bread and water

Key:	NFIR - Not Found In Record 	UA – Unauthorized absence	NJP – Nonjudicial punishment	SCM – Summary court-martial	
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties 
	CONF – Confinement		B&W – Confinement on bread and water